Select Page

Lord Justice Flaux found it difficult to imagine that the implied choice of the law of an arbitration agreement did not depend on the need for commercial efficiency. In his view, this was at odds with the decision of the United Kingdom Supreme Court in marks and Spencer plc/BNP Paribas Securities, which understandably stated that a clause could only be implied in a contract if it was necessary for its commercial effectiveness. An arbitration agreement is an agreement between the parties to submit to arbitration all or part of all or part of the disputes that have or have not emerged between them regarding a defined legal relationship. This decision was appealed to the Bundesgerichtshof, which dismissed the appeal as inadmissible. The Bundesgerichtshof found that the trial court had applied the appropriate conditions and principles to assess the validity of a compromise clause as follows: although it does not deal directly with the point, recent cases may indicate that The Indian courts are satisfied with some asymmetry between the arbitration rights of the parties in the arbitration clauses. Recently, the Indian Supreme Court of TRF Ltd/Energy Engineering Projects Ltd (July 3, 2017, Civil Complaint 5306 of 2017) reiterated that a clause allowing one party to appoint an arbitrator alone and without the introduction of the other is valid. The High Court of Judicature in Bombay also considered a clause authorizing a single party to appoint the arbitrator and did not consider it necessary to verify whether this aspect of the clause was valid (26 May 2017, 2016 arbitration request No. 65). This article examines the applicability of asymmetric arbitration clauses that have been agreed between demanding parties in a number of key legal settlements. Some consider this to be potential evidence of positive treatment by Turkish courts of asymmetric international arbitration clauses in the future. It remains to be seen whether this is true. For the time being, the validity of asymmetric international arbitration clauses remains uncertain and these clauses must be treated with caution.

Under English law, an arbitration agreement (among other things) must be written and safe enough to be applicable – see the practical instructions above.