Compatibility of Unilateral Option Clauses with the European Convention on Human Rights

Abstract

This article assesses the compatibility of unilateral option clauses with the ECHR. It distinguishes between the two types of such agreements: unilateral arbitration and unilateral litigation clauses. Unilateral arbitration agreements establish litigation as a default rule with an arbitration exception exercisable exclusively by a designated party (the beneficiary). Unilateral litigation clauses provide for arbitration as the default dispute resolution mechanism, but one party (the beneficiary) can choose litigation. The article argues that these clauses affect the safeguards of Article 6 ECHR differently. More specifically, I submit that unilateral litigation clauses entail a waiver of both the right of access to a court and the right of equal access to a court by the nonbeneficiary, whereas unilateral arbitration agreements result in a waiver by the nonbeneficiary only of the right of equal access to a court. The article further analyses unilateral option clauses in light of the requirements for a valid waiver of a right developed by the ECtHR. The paper concludes that these clauses are compatible with the ECHR because they constitute a valid waiver of the right of equal access to a court.