Arbitration Agreement Template South Africa

Internal Arbitration The first part of the Arbitration Act requires a written agreement that refers to the resolution of existing or future disputes concerning a case mentioned in the agreement, whether or not an arbitrator is appointed to the arbitration. If the above elements are present, the arbitration agreement is valid. The starting point of Indian law is that there must be reciprocity in an arbitration agreement. The Delhi Supreme Court has held that an asymmetric compromise clause is not valid (or even an arbitration agreement) until the party exercises its ability to settle – before that, there is a lack of reciprocity (Union of India vs Bharat Engineering Corporation ILR 1977 Delhi 57). However, the Calcutta Supreme Court subsequently upheld the validity of an asymmetric arbitration clause (New India Assurance Co Ltd/Central Bank of India – Ors AIR 1985 Cal 76). The Calcutta Supreme Court expressly refused to accept the argument of the Delhi Supreme Court and found that an asymmetric arbitration clause constitutes a valid arbitration agreement from the outset, even if it is enforceable only by the party with the possibility of conciliation. It is also likely that Indian courts will take into account the balance of comfort, the interests of justice and other similar considerations when deciding whether Indian courts have jurisdiction under a contractual choice of jurisdiction or a judicial clause. Indeed, such considerations may be „essential, in the interest of international trade and trade, to improving relations between countries and the inhabitants of the world“ (see The Black Sea Ship U.L. Lastochkina ODESSA USSR/Union of India AIR 1976 ANDH PRA 103). The English courts have always held that asymmetric clauses apply.

The NB Three Shipping v Harebell Shipping [2004] EWHC 2001 (Comm) case concerned an application to suspend arbitration under an asymmetric clause. The shipowner was authorized to pursue arbitration, but the charterer was limited to high court proceedings. Morison J. found that the clause would give „better rights“ to shipowners, but refused to support arbitration. However, in Law Debenture Trust Corp v. Elektrim Finance BV-Ors [2005] EWHC 1412 (Ch), Mann J considered an asymmetric clause providing for arbitration, but which gave one of the parties the opportunity to take legal action. In this case, the application for a stay of arbitration was accepted because the right to seek arbitration was of the agreed possibility of appeal. These cases show that the English courts will implement the dispute resolution method chosen by the parties, whether asymmetrical or not. This situation is reinforced in two recent cases in asymmetric jurisdiction clauses.