chapter  5
30 Pages

Enforceability of dispute resolution agreements

After a forum is satisfied that a valid jurisdiction or arbitration agreement is concluded by the parties to govern the dispute in question, the forum will move to consider the enforceability of this agreement. It is necessary to know that a valid dispute resolution clause does not mean it will be enforced by the forum. Validity decides whether an agreement meets the preliminary requirements of law to be legally sound. Enforceability, on the other hand, means what effect should be given to the legally sound agreement. The former refers mainly to contractual requirements of a dispute resolution clause, and the latter considers a country’s policy to give party autonomy its binding effect. Enforcement of a dispute resolution agreement is exclusively the procedure issue of a court. Although different choice of law rules may apply to decide the validity of a dispute resolution agreement, enforceability or effectiveness of this agreement is governed exclusively by the lex fori.1