Explaining Assignments of Arbitration Agreements

Cambridge Law Journal, Forthcoming

U of Melbourne Legal Studies Research Paper No. 933

24 Pages Posted: 14 Jan 2021 Last revised: 3 Jun 2021

See all articles by Ying Khai Liew

Ying Khai Liew

University of Melbourne - Melbourne Law School

Date Written: 2020

Abstract

The case law and literature to date have struggled to locate the rationale for the assignability of arbitration agreements. While different justifications have been proffered, each of them rests on questionable premises. This has given rise to a host of uncertainties over the rules which apply in practice. This paper proposes that a satisfactory rationale can be found in the “acceptance principle”. This principle indicates, first, that arbitration agreements which are not actual burdens can be assigned, and second, that the assignability of arbitration agreements is grounded in the assignee’s acceptance in the form of non-disclaimer of the assignment. Bringing the acceptance principle to the fore not only provides a theoretically sound justification for the assignability of arbitration agreements; it also suggests how the practical uncertainties in this area of law can be resolved satisfactorily.

Keywords: assignment; arbitration; acceptance; benefit and burden; conditional benefit; subject to equities

JEL Classification: K1, K10, K11, K19

Suggested Citation

Liew, Ying Khai, Explaining Assignments of Arbitration Agreements (2020). Cambridge Law Journal, Forthcoming, U of Melbourne Legal Studies Research Paper No. 933, Available at SSRN: https://ssrn.com/abstract=3741181 or http://dx.doi.org/10.2139/ssrn.3741181

Ying Khai Liew (Contact Author)

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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