FORCED ARBITRATION

Abstract

The intention of this work is to clarify the meaning of the adjective "forced" in addition to the word arbitration, which is related to arbitration procedures that are competent for the parties, regardless of the existence of their will to resolve the dispute in such a way. Such arbitrations are the opposite of other arbitrations due to the lack of will and consent of the parties to settle disputes before an elected body and in accordance with the chosen rules or rules of that chosen body, as an essential element that distinguishes "forced" from "voluntary" arbitrations. The parties in these cases often have no prior knowledge of the body responsible for resolving disputes, or even of the rules that will be applied to the procedure, which can significantly affect the final realization and protection of rights from such a legal transaction or relationship. Also, in my opinion, some authors unjustifiably recognize the attribute of "compulsory arbitration" (arbitrage obligatore, compulsory arbitration, Zwangsshiedsgerich) to those arbitration courts whose jurisdiction is nevertheless based on contracts concluded precisely between the parties to that contract, which is why the adjective "compulsory" loses its its meaning and power. An important element in distinguishing between "forced" and "voluntary" arbitration must be the will and consent of the parties to settle their disputes before the court they chose themselves or, by signing the Agreement, agreed to the jurisdiction of the court proposed by the other party. "Compulsion" to agree to arbitration proposed by the "stronger party" due to the necessity or desire to sign a certain contract or other legal transaction does not, in my opinion, make such arbitration "forced", precisely because of the possibility of the other party to resist such coercion.