Asymmetric Arbitration Agreement

However, parties should also consider the validity of courts where an arbitral award could be enforced and in other jurisdictions where a party might attempt to initiate proceedings in violation of the arbitration agreement (e.g. B the courts of origin of the parties). Careful analysis during the design phase can reduce the risk that the arbitration clause will not be enforceable as long as a dispute arises and it is most necessary. However, Russian law does not appear to require a mere symmetrical arbitration agreement. Alternative dispute settlement agreements, in which both parties have the choice of referring a dispute either to a court or to an arbitral tribunal, appear to be valid and enforceable under Russian law. Similarly, a clause has been validated, according to which one of the parties can only refer disputes to arbitration, but the other is only entitled to procedural law. In Sicaly, Cass. 1. Civ., 15 May 1974, the Court of Cassation upheld an asymmetrical clause which gave a party only the right to choose between a tribunal or an arbitral tribunal. In his judgment, Coomaraswamy J. held that this dispute fell within the scope of the arbitration agreement.

The Court of Appeal upheld the High Court`s decision and ruled that the dispute settlement clause was a valid arbitration agreement….

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