Shortcomings of KKO 2013 Sample Clauses

Shortcomings of KKO 2013. 84 As discussed above, the rationale behind the Supreme Court decision in KKO 2013:84 is basically the following: the non-signatory’s claim necessitates interpretation of the underlying agreement (in which the benefit was granted), making it an issue arising out of the agreement, which is to be resolved in arbitration. As an independent rule of interpretation, this one raises a few questions: first of all, with regard to arbitration agreements’ formal requirements and extent in relation to third parties, and secondly with regard to situations in which multiple parties are involved in a series of contracts. In the first case, the rule provides no insight as to why the arbitration is extended to cover the non-signatory or why the formal requirements are dismissed. Even though it is now obvious that the written requirement is irrelevant with regard to the non-signatory beneficiary, does it mean that the Supreme Court decision construes the requirement the same way as the author336 or does it also mean that the nature of the requirement has changed even between the signatory parties? Although the author assumes the former, it might provide an interesting premise for further analysis. Be as it may, this lack of reasoning basically leads to literal application of the rule of interpretation. Therefore, in the case of multiple parties and series of contracts, if parties X and Y had a dispute which was materially linked to another agreement between Y and Z 336 I.e. the requirement only applies in the formation of the arbitration agreement between the signatory parties. See supra Chapter 5.2.1. containing an arbitration clause, would the dispute have to be brought to arbitration? If the rationale of the Supreme Court was applied, the answer would be positive, especially in case resolving the dispute would require interpretation of the agreement between Y and Z. This view, however, is troublesome due to the fact that it disregards the subjective scope of arbitration which has typically only bound the parties of the arbitration agreement. In other words, this rationale would place emphasis on the object and the subject matter of the dispute. Such interpretation would shift the focus away from party consent and intent which have traditionally been the focal elements, at least in the international environment. Further concern arises with regard to this problematic interpretation. Would the “easy access” to arbitration provided by this view drastically increase objection...
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Related to Shortcomings of KKO 2013

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