Study On The Legal Effect Of Unilateral Option Arbitration Clause

The unilateral option arbitration clause gives one party a unilateral right to choose the way of solving disputes.Since these two parties don't have the equal right,the validity of the unilateral option arbitration clause has been the focus of court review.At present,countries have not clearly stipulated the validity of the unilateral option arbitration clause,and there are blanks in legislation.From the perspective of extraterritorial practice,courts in various countries have different attitudes towards the validity of the unilateral option arbitration clause.With the development of practice,there has been a trend to recognize the validity of the unilateral option arbitration clause But the unilateral right remains a factor affecting its validityThere are four reasons to deny the validity of the unilateral option arbitration clause in practice:inequality of the procedural rights,lack of mutuality,unconscionability and lack of consent to arbitration.However,except that unconscionability can be used to deny the validity of the unilateral option arbitration clause under certain conditions,other negative reasons have theoretical defects and can be responded by the spirit of autonomy of parties' will.In practice,the use of the unilateral option arbitration clause can improve the efficiency of commercial transactions,avoid inconvenient procedural mechanisms and effectively reduce the inherent risks in transactions.In other words,the clause meets the needs of parties Recognizing the validity of the unilateral option arbitration clause has profound practical value.The unilateral option arbitration clause doesn't limit one party's right It is the parties' self-discipline of rights under commercial rationality.It is concluded that except under obvious unfair circumstances such as fraud,intimidation,or taking advantage of others' difficulties,the unilateral option arbitration clause shall be recognized as valid.However,it is undeniable that the clause itself has a natural bias.Since the clause often appears in the form of a formal contract,when the unilateral option arbitration clause is applied to the contract which contains the vulnerable party,the validity of the unilateral option arbitration clause needs to be reconsidered.In the field of protection of the weak such as consumer contracts,employment contracts,insurance contracts,etc.,due to the format clauses,the two parties do not have the conditions for negotiation.There exists a problem that the clause restricts the weak party to seek more powerful relief when the option is controlled by the strong party.This unilateral option arbitration clause in the field of protection of the weak should be excluded from application.There are abundant practices of the unilateral option arbitration clause in the other countries.But there are few cases in China.From the existing cases,it is not possible to infer the clear attitude of Chinese courts to the unilateral option arbitration clause.By analyzing the cases that have occurred,it can be concluded that there are two main difficulties in applying the unilateral option arbitration clause in China:firstly,China finds that the "arbitration or trial" agreement is invalid;secondly,the unequal right to refer to arbitration is considered to be a violation of the principle of fairness in our country.The two types of dilemmas are not insurmountable.There is still room for discussion on the issue that whether or not the unilateral option arbitration clause is a typical "or arbitration or trial" agreement and whether the clause is truly unfair.