Unilateral Arbitration Agreements

In a 1989 decision of the Federal Court of Justice, it was stated that the right of one or only one of the parties to vote to go to arbitration is not an obstacle, unless there is immense superiority such as the right to elect an arbitrator for only one of the parties referred to in article 307, paragraph 1 of the Civil Code[14]. This decision (and Rothschild`s decision) is important when it comes to unilateral jurisdiction clauses. Notwithstanding the fact that, since the Rothschild decision, the French courts have not had the opportunity to consider the question of arbitration, there is nothing to indicate that the same approach would be followed with regard to clauses that provide for an arbitration agreement with the possibility of suing in a given jurisdiction or an exclusive jurisdiction clause with the option for a party, to initiate arbitration proceedings (so-called hybrid dispute resolution clauses). The Court decided that English customary law recognises options in contractual clauses. While Article 32.2.2 of the lease was rather unusual, the Court held that the option provided for therein could not in principle be challenged, even though it would “include a unilateral aspect and, in that sense, an element of imbalance in the rules of dispute settlement”. The Court also stated that “the appropriate legal examination is that an option is an offer to enter into a contract that can be accepted by exercising the option, [sic] the option has been exercised in writing.” . . .

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