Colonialism and the interpretation of arbitration agreements

10/03/25

Ali Al-Karim has co-authored a book chapter about the interpretation of arbitration agreements.  The chapter addresses issues such as the influence of colonialism on arbitral practice in the 19^th century; the meaning of independence and neutrality in dispute resolution; legal history; and the case-law on pathological clauses.

The chapter argues that the decision of the Paris Court of Appeal in Sultan of Sulu v Malaysia was wrongly decided. The argument rests on a proper explanation of the legal and colonial history surrounding the arbitration agreement. The article starts with a detailed consideration of the case-law on pathological arbitration clauses, and the ‘dominant purpose’ test applied to determine whether parties chose to appoint a particular arbitrator or whether their main intention was to remove the dispute from the jurisdiction of local courts. The paper also considers how the law of the seat may have implications for how national courts apply the dominant purpose test.

The paper then applies the dominant purpose test to the 1878 arbitration agreement in the Sulu case. The parties’ selection of the British Counsel General of Brunei as arbitrator was predominantly a decision to arbitrate, not to appoint a particular arbitrator. The parties chose to refer the dispute to a party who they perceived to be neutral and independent. That party choice reflects the invidious influence of colonialism on arbitration and dispute resolution in the 19^th and 20^th century.

An except of the paper is available here.