An arbitration clause that grants only one party the power to decline arbitral jurisdiction and request that the case be decided by ordinary courts is not invalid, as it does not conflict with the limits on the exercise of private autonomy. Unilateral derogation does not contradict any existing law nor values inherent in the legal system, but constitutes an expression of a tendency consistent with the system, favourable to recognising public justice as the primary form of conflict resolution.
A unilateral arbitration clause, whilst introducing differential treatment between the parties regarding the choice of dispute resolution methods arising from the contract, is capable of satisfying the requirements of certainty of protection and mutuality and reciprocity of consent connected to the stipulation of an arbitration agreement. It translates into the prior identification of the party bound to observe arbitral jurisdiction and constitutes the fruit of a convergent manifestation of the parties' will.
A unilateral arbitration clause is comparable to an option agreement under Article 1331 of the Civil Code, whereby the parties agree on the possibility of derogating from ordinary jurisdiction, whilst leaving the final decision on this point to one of them, with unmodifiable and binding effect for both contracting parties limited to the specific action to which it refers.
The requirement of specific written approval provided by Article 1341(2) of the Civil Code for unfair terms is prescribed for the enforceability of unfair terms against the adhering party, who alone is entitled to raise any deficiency thereof. Failure to raise the exception of lack of specific written approval precludes the detectability of the defect.