Download full version of « If you accept a unilateral arbitration clause » – June 2017 (PDF, 193KB) Since then, however, the Court of Cassation has taken some controversial decisions in which it refused to impose unilateral option clauses. These cases probably did not have a real impact on asymmetric arbitration clauses, as the proposed option existed between national jurisdictions. For example, in the much-criticized Rothschild case (Cass. 1st civ., September 26, 2012, No. 11-26.022), the Court of Cassation decided that an agreement that would establish the possibility for a party to choose between an undetermined choice of jurisdiction was out of the question. The Singapore Court of Appeal recently upheld the validity of an asymmetric clause in Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2017] SGCA 32. The clause provided that, upon election of a party (Dyna-Jet), a dispute could be referred and settled by arbitration. Therefore, the clause was not only asymmetrical and « lack of reciprocity », but also optional insofar as it derogated from an election by Dyna-Jet. This is the first time that the Court of Appeal has decided on the validity of an asymmetric and optional arbitration clause under Singaporean law. Until the uncertainty caused by conflicting decisions is resolved by the Supreme Court or legislator, the position of asymmetric arbitration clauses will remain unclear in Indian law. While recent cases may indicate that Indian courts will allow some asymmetry with respect to arbitration clauses, the position is far from being clarified and parties should adopt asymmetric clauses with caution. .

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