By virtue of unilateral arbitration clauses, one of the parties can choose whether to arbitrate or litigate a dispute. These clauses are generally valid, based on the principle of party autonomy. Unilateral clauses pose interesting questions in the general theory of arbitration agreements. For instance, they force us to consider whether it is of the essence that obligations to arbitrate in ordinary arbitration agreements are made as consideration («causa») for the other party’s obligation to arbitrate.
The principle of separability (a more suitable name than «autonomy») of arbitration clauses cannot be used to answer in the affirmative. Separability is just a legal fiction with a limited purpose: to allow for the competence/competence rule. In particular, separability does not mean that arbitration clauses are self-sufficient in all regards, and that arbitration agreements always create two reciprocal obligations to arbitrate.
Consideration of both the validity of unilateral clauses and the limited scope of the principle of separability, as well as the legal regime of reciprocal obligations in the Spanish Civil Code, leads to the conclusion that arbitration agreements do not create legally reciprocal obligations to arbitrate.
Iurgium [previously Spain Arbitration Review]