Law is not a static and exact science. Law is influenced greatly by circumstances and situational variables correlated with each legal case. Law is increasingly being accepted by the community as an efficient and flexible method of dispute resolution. The increased use of arbitration has led to the publication of awards and the evolution of a considerable body of juridical writing on the subject. The publication of awards explains that law contributes to the systematic elaboration of rules governing choice of law in arbitrations. The majority of the critics admit that the essential elements of current laws are thus it’s consensual and binding nature, and the active role played by the participants in choosing the arbitrators and determining the procedure for resolving their disputes. However, the role of national law in arbitrations is noteworthy; the scope of national law interventions in legal environment is continuously being circumscribed and streamlined.
Law is not an exact science because it is impossible for lawmakers to predict and stipulate all cases and all circumstances affecting a victim and an offender. Additionally, the divergence in laws complicated the ability of arbitrators to familiarize themselves with arbitration laws and procedures The above factors underscored the need for the modernization and harmonization of laws relating to social life. It is hardly useful to stress that the above conventions and the Model Law apply only in those cases that have either ratified or enacted them into law. Despite this fact, legal agents make constant reference to these conventions and the Model Law because they embody an emerging consensus on how the practice of international arbitration should be organized and regulated (Bastiat, 1998).
A legal clause is significantly different from the substantive agreement in which it is contained. While the latter outlines the rights, duties, and obligations of the parties, the former contains the procedure for resolving any disputes that have arisen or may arise under the substantive agreement. Thus the one may be described as substantive and the other procedural (McKinney, 2005).The issue may arise whether or not an arbitration clause survives the invalidity of the substantive agreement in which it is contained. Does the invalidity of the main contract adversely affect an arbitration clause contained therein? If the question is answered in the affirmative, an arbitrator cannot assume jurisdiction in situations where one of the parties contends that the substantive agreement containing the arbitration clause is invalid, at least until the validity of the substantive agreement is determined (Bastiat, 1998).
Healthcare is influenced by and is ruled by law. It does not take much effort to see that if the validity of the healthcare policy clause is dependent on the validity of the main contract, a party seeking to frustrate or delay the arbitration process need only plead that the main contract is invalid in order to preempt the arbitrator’s jurisdiction and seek a court resolution of that preliminary objection. The principle of the autonomy of healthcare agreements is designed, in part, to prevent the use of this kind of tactic in stalling the process of arbitration. In healthcare, the principle of the autonomy of the arbitration agreement proclaims that an arbitration agreement is autonomous in relation to the contract from which it originates. In this sense, a legal clause is independent of the commercial agreement in which it is contained, and cannot be automatically affected by the fortunes of the substantive contract. One effect of the principle is that the legal clause survives the invalidity of the substantive contract unless it is shown that the cause of the invalidity also specifically applies to the legal clause (Levi, 1952).
The primacy accorded to law autonomy in the determination of applicable substantive and procedural law meshes neatly with the private nature of arbitration. Nevertheless, it should always be remembered that law in healthcare can never be entirely privatized, for it must continually respond to the policy demands of those jurisdictions whose legitimate interests are implicated in the proceedings. It would seem that the survival of international commercial arbitration as a legitimate system of dispute resolution depends not only on its responsiveness to the needs of the participants but, perhaps more crucially, on its respect for vital juridical interests (Holmes, 2004).
This preeminent healthcare policy is sometimes labeled public policy or truly international public policy. Like the concept of public policy in national law, the concept of healthcare policy presupposes the existence of “a certain community and of certain fundamental values. While the public policy of a State embodies the moral and ethical philosophy of healthcare, public policy performs the same role for the community. There is a certain similarity between the two: principles that embody the fundamental and ethical values of a community would in most cases be equally fundamental in healthcare. For example, the requirement of fair hearing and due process is considered a basic element of justice in both national and international communities. However, so long as healthcare policy represents particular and narrow national interests, while transnational public policy represents the values of the world community, the two strands of public policy can not be identical. Thus, while the act of gambling is against public morals in some societies, it can hardly be said that the abhorrence of gambling is part of the fundamental values of the world community.
References
Bastiat, F. (1998). The Law. 2nd ad. Foundation for Economic Education
Holmes, O. W. (2004). The Path Of The Law. Kessinger Publishing.
Levi, Edward H. (1952). An Introduction to Legal Reasoning. University Of Chicago Press; Revised edition
McKinney, R.A. (2005). Reading Like A Lawyer: Time-Saving Strategies For Reading Law Like An Expert. Carolina Academic Press.