Arbitration Agreement South Africa
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 language of the arbitration includes all aspects of the proceedings, including the pleadings of the parties, the presentation of oral documents and evidence, and the arbitral award itself. This is an important aspect to be determined, especially when the parties do not have a common language. The situation under Russian law is complex and the application of asymmetric clauses can be problematic. In a case often reported in 2012, the Office of the Supreme Court of Arbitration (then the highest court for commercial affairs) ruled that a clause allowing a single party to allow the possibility: In addition to the standard arbitration clause that binds both parties to the proceedings, it would violate Russian law, as it would confer on one party an unfair advantage over the other and would therefore violate the principle of equality of arms (see resolution of 19 June 2012 No.
1831/12 in Case No. А40-49223/11-112-40). As a result, the court allowed both parties to assert their rights in Russian courts. In other words, the asymmetric clause has been interpreted as symmetrical. Other jurisdictions, before and after, have chosen different approaches to this area. In some cases, the Tribunal did not find these asymmetrical clauses problematic, while in others, the courts followed the advice of the Arbtirazh Supreme Court Office. Of all the elements of an arbitration clause, the seat is the only element that always creates the most confusion. Simply put, the seat of arbitration proceedings is the “legal place” of arbitration. It is important because it is determined: one of the fundamental principles of arbitration is that the parties can agree on how they can resolve their disputes. Their agreement often comes in the form of a contractual promise by each party to refer disputes to arbitration. Such an agreement is symmetrical – each party has the same right to resort to arbitration. However, it is not uncommon for the parties to agree on asymmetric rather than symmetrical tariffs.
The classic case is that only one party has the right to refer disputes to arbitration, but the other party must take legal action. These asymmetric clauses are often used in financing transactions in which a party only wishes to be sued in its electoral tribunal (e.g. B of its home jurisdiction), but wishes, conversely, to have the possibility of imposing guarantees and suing assets against the other party to the extent possible. . . .