Tiivistelmä – Referat – Abstract
When parties become unable to pay for the costs of arbitration, they sometimes seek to resort to litigation in national courts. In such circumstances, UK courts, in reference to the UK Arbitration Act, have held that impecuniosity of a party would not invalidate the agreement to arbitrate and impecunious parties could thus not be allowed to resort to litigation while there is a valid arbitration agreement.
Research in this thesis found, in light of recent US courts decisions, that an economically superior party could purposely make arbitration expensive and consequently unaffordable for an economically inferior party by insisting on undue conformity with the requirements of procedural due process. When issue of impecuniosity is raised by a party who seeks to resort to litigation and a counterparty seeks to compel arbitration, the approach of the US courts is that the party who seeks to compel arbitration could either pay for the costs of arbitration or the impecunious party should be allowed to resort to litigation in the national court.
This thesis suggests that in order not to foreclose economically inferior parties from obtaining justice because of impecuniosity which might be unscrupulously occasioned by economically superior parties during the course of arbitration, the UK courts should adopt similar approach taken by the US courts in some cases.
