Making A Case For The Unilateral Optional Clause: A Jurisprudential Analysis

Abstract

Does a unilateral right to invoke arbitration invalidate the arbitration agreement? In the seven decades since the issue first arose for the courts' consideration, there has been no consensus between the High Courts. This essay argues that the judicial recognition of such a right would be consistent with existing Indian jurisprudence. To do so, it first discusses the legal history of clauses such a conferring a right in India, culling out both the prevailing and potential grounds on such clauses can be opposed. On the basis of a discussion of these grounds, it concludes that courts can check the substantial and procedural soundness of unilateral option clauses to give better effect to party autonomy and mutual consent.