The cornerstone of international arbitration is its consensual nature. Arbitration is chosen willingly by the contracting parties by concluding an agreement to arbitrate. At least this was the case until very recently. International commercial relationships have evolved and along with them the way that agreements are conducted, including arbitration agreements. New practices in the international commercial level with prefixed contracts are considered more efficient, speedy and low costly but at the same time they may jeopardize the consensual nature of arbitration when mandatory pre disputes arbitration agreements are included in these contracts and the latter are offered on a “take it or leave it” basis.
The present work, after considering the above, shortly refers to arbitration agreement and the validity requirements, looks at some common practices in international commerce where standard contracts are used and where arbitration clause is often included and sets the question whether there is actually consent to such an arbitration clause and how the principles of separability and competence-competence affect arbitrators and courts when jurisdiction is challenged on the ground of lack of consent. A special reference is done to the provisions of the New York Convention (1958) that could offer a ground on which a party could or could not challenge the arbitration agreement’s validity due to lack of consent. At the end it results that it would be probably superficial to ask for the absolute invalidity of any arbitration clause in any prefixed contract, except in some areas, and that the final scrutiny of such an agreement will always be in a judge’s hands.
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