Calling a Spade a Spade: Making the Case for Construing Exclusion Agreements in Arbitration as Exclusion Clauses - Arbitration: The International Journal of Arbitration, Mediation and Dispute Management View Calling a Spade a Spade: Making the Case for Construing Exclusion Agreements in Arbitration as Exclusion Clauses by - Arbitration: The International Journal of Arbitration, Mediation and Dispute Management Calling a Spade a Spade: Making the Case for Construing Exclusion Agreements in Arbitration as Exclusion Clauses 87 1

Exclusion Agreements (‘EAs’) are agreements excluding the right to appeal arbitral awards. However, a lacuna exists in the analysis of EAs. courts when ruling on EAs, lapse into dichotomous outcomes – enshrine party autonomy or respect issued awards. Therefore, this article argues for the law on exclusion clauses to be applied to EAs for five reasons. First, EAs are essentially exclusion clauses as they also demarcate obligations. Second, the proposed solution adds rigour to the analysis of EAs. Third, EAs share very similar policy considerations with exclusion clauses. Fourth, the potential doctrinal objection – doing so violates the doctrine of separability – is rebutted. The tribunal presides over proceedings to issue arbitral awards, while courts decide the validity of EAs. Further, the roots of ‘separability’ is arguably procedural in enshrining choice of dispute settlement. Lastly, subjecting exclusion clauses to stricter scrutiny than EAs sends the wrong signal to parties invoking EAs.

Arbitration: The International Journal of Arbitration, Mediation and Dispute Management