Arbitration and tourism- a field to explore by João Vidal IJTTHL PRE-PRINT

binding themselves reciprocally to have that dispute decided by an arbitral tribunal. The most common cause for the conclusion of arbitration commitments is the slowness of the State courts, which makes the parties feel the "need" to resort to an arbitration court in order to safeguard the useful efect of the decision that will be rendered. The arbitration commitment should be set out in a written document signed by the parties. The arbitration clause shares the form of the arbitration commitment and must be agreed in writing , either as part of another contract or as an autonomous 5 agreement. Practice shows that arbitration clauses are usually integrated into the contract whose relationship they aim to protect. Despite the virtues of arbitration, some care must be taken in drafting arbitration clauses. We refer to this special care here, rather than in the arbitration clause, because the latter, because it deals with an existing dispute, is more immune to the necessary predictive abilities of the author of the arbitration clause. If in the commitment the parties already know what divides them and, probably even, the respective arguments they have put forward in the ongoing dispute, at the time of the conclusion of the clause the parties are still at a contractually sound moment and, whether through inertia or ignorance, are less alert to the dangers arising from the contract they are concluding. In this respect, it will be said that it is not enough for the parties, in more complex legal relationships, to determine that any disputes will be settled by arbitration. Such a generic designation will easily lead to many surprises when the dispute arises. Care must therefore be taken, with the advice of professionals in the sector, preferably with experience in arbitration, to choose and defne the desired arbitration model (whether institutional or ad hoc), which arbitration centre is most qualifed to deal with the problem in question, whether the court will have one or three arbitrators, etc. 2.4 The problem of unilateral transactions A diferent question is whether a unilateral legal transaction may contain an arbitration clause. Portuguese law, unlike German law, does not expressly refer to this possibility, but, by systematic interpretation of the law, it does not seem to us that the existence of such a possibility can be denied. In the words of Menezes Cordeiro , "If someone can unilaterally dispose of a right he may, a 6 fortiori, determine that the doubts arising from that disposition be subject to arbitration". Such considerations lead to, in the most enlightening example, the author of an inheritance may, in a will, fx an arbitration clause by which any disputes arising from that instrument, already after his death, are mandatorily settled in an arbitration court. 2.5 Institutionalised and ad hoc arbitration The more instrumental aspects of contractual arbitration may be entrusted to an entity that manages the proceedings. Thus, issues such as the constitution of the arbitral tribunal, the logistical support necessary for the development of This requirement of written form already appears in the 1958 New York Convention 5 Cordeiro, 2015, pag. 97. 6 4

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