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Chapitre D'ouvrage Année : 2021

Access to Justice and Arbitration. Is Consent to Arbitrate Still at Stake?

Résumé

Access to justice has gradually been established, in Europe and elsewhere, as a fundamental right. It is a widely recognized right, not easy to define precisely, but understood at least as the right of access to a court for any person. It is up to States to guarantee and organize this access, enabling individuals to obtain the remedy to which they claim to be entitled. Freedom implies that States may prefer to organize access to a private judge, an arbitrator, or offer an alternative to a state judge. It is then up to the parties to express their choice of forum, which is manifested by the agreement to entrust an arbitrator with the task of settling their dispute, thereby accepting in advance the loss of freedom to contest the validity of the decision rendered. This situation calls for a general reflection on the force of consent and its scope, regardless of the type of arbitration (commercial, investment, sports, etc.). For several years, consent to arbitration has been presented as declining, to such an extent that it would gradually be reduced to a mere legal fiction; some even wonder whether it has become a 'pure legal fiction'. In fact, many cases presented as 'mandatory arbitrations' seem to be emerging in Europe and elsewhere. This chapter questions the very notion of arbitration and attempts to distinguish between scenarios where arbitration is required by law or by the co-contractor. It is debatable whether arbitration could be imposed in the absence of the parties' consent, raising the question of the necessary coincidence between arbitration and consent. In other words, is arbitration necessarily consensual justice, or can there be cases of arbitration without consent?
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Dates et versions

hal-04483143 , version 1 (29-02-2024)

Identifiants

  • HAL Id : hal-04483143 , version 1

Citer

Clotilde Jourdain-Fortier. Access to Justice and Arbitration. Is Consent to Arbitrate Still at Stake?. Access to Justice in Arbitration. Concept, Context and Practice, Wolters Kluwer, pp. 35-57, 2021, 978-94-035-0691-3. ⟨hal-04483143⟩
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