1 Introduction

The decision of the French Cour de Cassation in the Rothschild case has become internationally (in)famous for having invalidated a unilateral jurisdictional clause under Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the “Brussels Regulation”).1 The French ruling is preceded by national court decisions in Bulgaria and Russia that have struck down unilateral arbitration clauses on grounds of unconscionability — in what has been described as a judicial ‘power grab’.2

This series of cases has attracted great attention in the United Kingdom and stirred concern with regard to the effectiveness and validity of unilateral dispute resolution clauses commonly used in certain industries, such as the banking and finance sectors in the City of London. The French position is in stark contrast with the view expressed by the English courts. This paper will attempt to shed some light on this cross-channel divide on the validity of unilateral dispute resolution clauses.

A preliminary remark on the terminology and definition of unilateral dispute resolution clauses: although they vary in shape and nature, unilateral dispute resolution clauses have in common that they offer a unilateral (or one-sided) option granting one party a choice in which forum to bring the dispute, whereas the other party has no such choice. Building on this common feature, one can distinguish between different types of unilateral clauses. While some are ‘pure’ unilateral jurisdictional clauses (offering one party the choice between national state courts in various jurisdictions), others may contain an arbitration option (giving one party the choice between arbitration and litigation). The latter are sometimes called hybrid dispute resolution clauses.

2 The Rothschild Case

In the Rothschild case, the Cour de Cassation was asked to consider the validity of a unilateral jurisdiction clause obliging only one of the parties to bring its case in a specific court, while the other was free to select “any other court of competent jurisdiction”. Mrs. X, a French national residing in Spain, had opened a bank account at the Luxembourg-based private bank Edmond de Rothschild Europe (“Rothschild”) through an intermediary finance company affiliated with Rothschild and based in Paris. Following an alleged decline in the financial performance of her investments, Mrs. X brought an action for damages against both Rothschild and the intermediary before the Paris courts.

The defendants challenged the jurisdiction of the Paris courts relying on the following jurisdiction clause:

“Potential disputes between the client and the Bank shall be subject to the exclusive jurisdiction of the Courts of Luxembourg. In the event the Bank does not rely on such jurisdiction, the Bank reserves the right to bring an action before the Courts of the client’s domicile or any other court of competent jurisdiction.”3

Rothschild argued that this clause was entirely compatible with Article 23 of the Brussels Regulation that provides in Paragraph 1:

“If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise.”

Following the first instance court, the Paris Court of Appeal, on 18 October 2011, rejected this analysis and found the unilateral jurisdiction clause to be null and void.4 According to the Paris Court of Appeal, although the Brussels Regulation permits a clause which gives one party an option to choose between different jurisdictions, such a clause may not allow one party to have “discretion to select whatever jurisdiction it wishes.”5

The Cour de Cassation upheld the Court of Appeal’s decision, but shifted the focus from the discretionary to the “potestative” nature of the clause:

“… by reserving the Bank’s right to bring an action in Mrs. X’s place of domicile or ‘in any other court of competent jurisdiction’, the clause only restricted Mrs. X, who was the only party obligated to commence proceedings in Luxembourg; accordingly, the Court of Appeal correctly determined that the clause was potestative in nature, for the sole benefit of the Bank, and therefore was contrary to the objectives and the finality of the prorogation of jurisdiction provided for in Article 23 of the [Brussels] Regulation.”6

Under French law, the doctrine of “potestativité” describes a situation in which performance of a contract is made subject to the occurrence of a condition precedent entirely within the power of only one of the contracting parties to cause to occur or to prevent.7 In applying the concept of “potestativité” and holding that the unilateral jurisdictional clause was invalid, the ruling presents a departure from an earlier decision of the Cour de Cassation: the court had held that where it was the common intention of the parties to provide only one of them with the right to choose whether to litigate or go to arbitration, such a clause was not objectionable.8

3 Assessment of the French Position

The different view taken by the French Supreme Court in the Rothschild decision is surprising, and arguably ill-founded for the following reasons.

First, in applying the French concept of “potestativité”, the court seems to have implicitly ruled that French law governed the substantive validity of the jurisdictional clause. It did so notwithstanding the fact that Luxembourg law was both the law of the designated court and the law chosen by the parties to govern the contract. While the law governing the substantive validity of jurisdictional clauses under the then-applicable version of the Brussels Regulation was far from certain,9 the application of French law seems far-fetched and has rightly been criticized.10 Under the recast Brussels Regulation, which entered into force in January 2015, Article 25 replaces Article 23 to the effect that the substantive validity of a jurisdiction clause is now governed by the law of the chosen forum which would in this case have pointed to Luxembourg law rather than French law.11

Second, the French court seems not to have considered, or at least not discussed, the fact that Article 23 expressly provides that a choice of jurisdiction “shall be exclusive unless the parties have agreed otherwise” (emphasis added). Article 23 of the Brussels Regulation thus recognises the parties’ right to provide for non-exclusive choice of jurisdiction agreements.12 The question whether, or to what extent, the parties’ autonomy under Article 23 also includes the possibility to provide for unilateral jurisdictional clauses was simply not discussed in the French decision.13

Third, what may have influenced the French Supreme Court’s decision is that the clause in dispute lacked specificity in granting Rothschild the right to bring an action “in any other court of competent jurisdiction” (echoing the Paris Court of Appeal’s emphasis on the full discretion granted to the bank “to select whatever jurisdiction it wishes”). The Rothschild case could therefore be read as prohibiting only such unilateral jurisdictional clauses where the party benefiting from the option has an unlimited choice of fora, whereas unilateral clauses arguably remain valid if the unilateral option is circumscribed to a limited number of precisely defined jurisdictions (for example, the domicile of the investor).14

Applying this rationale to the jurisdictional clause in the contract between Mrs. X and Rothschild, one might argue, however, that the clause at hand did not contain an unlimited choice of fora. The clause designated “the client’s domicile or any court of competent jurisdiction” (emphasis added), which arguably limited Rothschild’s options to those courts having jurisdiction under the Brussels Regulation, i.e. most likely the courts of Spain where Mrs. X was domiciled or the courts of Luxembourg where the services were performed. The French Supreme Court did not discuss whether the addition of the “competent jurisdiction” language was a sufficiently precise criterion to limit the party’s jurisdictional options.15

Fourth, the Rothschild decision may also be explained by the court’s desire to protect an arguably weaker party, Mrs. X, against a counter-party of stronger bargaining power. However, the Brussels Regulation contains a specific regime for the protection of weaker parties (in particular, Articles 15-17 concerning consumers), including concerning abusive jurisdictional clauses, and such regime was not applied nor even discussed in the French decision.

For all the above-mentioned reasons, the French decision seems ill-founded and it is unclear whether the Court of Justice of the European Union, on a similar matter brought before it, would follow the French approach.

4 Comparative View: English Law

The French courts, however, are not alone in having recently invalidated unilateral dispute resolution clauses. Mirroring the French decision, in September 2011, the Bulgarian Supreme Court struck down a unilateral choice-of-court clause in a loan agreement on the grounds that such clauses may be interpreted as purporting to establish a “potestative right” which is not permitted under Bulgarian law.16

Adopting a different approach, the Russian courts have also recently held that a unilateral arbitration clause in the context of standard form contracts was invalid on grounds of unconscionability.17 The disputed agreement between CJSC Russian Telephone Company (“RT C”) and Sony Ericsson Mobile Telecommunications Rus LLC (“Sony Rus”) for the sale of mobile telephone equipment contained a dispute resolution clause that provided Sony Rus with the right to commence arbitration or litigation to resolve disputes between the parties, while RT C only had a right to arbitrate. Unlike the Cour de Cassation in Rothschild that invalidated the clause in its entirety, the Supreme Court of the Russian Federation turned the unilateral option into a bilateral one. Consequently, both parties had the options provided for unilaterally in the clause, i.e. both parties were able to bring the dispute either to arbitration or before the Russian courts.

These decisions contrast with the view taken by the English courts. In recent years, several English cases have confirmed the validity of unilateral jurisdictional clauses under English law.

a. <i>NB Three Shipping Ltd v. Harebell Shipping Ltd [2004]</i>

The NB Three Shipping Ltd. v. Harebell Shipping Ltd case concerned a dispute between the owners and charterer’s predecessors over the charter of two newly built vessels.18 The dispute resolution clause within each of the two charterparties contained the following hybrid unilateral dispute resolution clause:

“Clause 47 Law, Jurisdiction And Arbitration

47.01 This Charterparty shall be governed by, and construed in accordance with, English law.

47.02 The courts of England shall have jurisdiction to settle any disputes which may arise out of or in connection with this Charterparty but the Owner shall have the option of bringing any dispute hereunder to arbitration. […].

47.10 Any dispute arising from the provisions of this Charterparty or its performance which cannot be resolved by mutual agreement which the Owner determines to resolve by arbitration shall be referred to arbitration in London or, at Owner’s option, in another city selected by the Owner by two arbitrators, one appointed by the Owners and one by the Charterers who shall reach their decision by applying English law. If the arbitrators so appointed shall not agree they shall appoint an umpire to make such decision”19.

A dispute arose between the parties concerning the appropriate and applicable interest rates, with the owners asserting that there was a default in the payment of interest and the charterers contending that they had been overcharged.20 The charterers commenced proceedings before the English courts.21 Subsequently, the owners decided to exercise their right to refer the dispute to arbitration and sought to stay the action before the English courts instituted by the charterers.22 The charterers opposed the stay arguing that the litigation had not been commenced in breach of the parties’ contract and had preceded the referral to arbitration.23

The court found with the owners. It reasoned that denying the owners the exercise of their right to resort to arbitration where the charterers first commenced litigation “contradict[s] the commercial sense of the clause as a whole.”24 In the words of Morison J:

“Clause 47 is designed to give ‘better’ rights to Owners than to Charterers. […] If Charterers seek to bypass the Owners’ determination to have disputes resolved by arbitration as contemplated by Clause 47.10, then Owners’ option of bringing the disputes to arbitration remains, continuing Owners’ control over the issue of arbitration or court. Charterers can obtain no advantage from ‘jumping the starting gun’.”25

Accordingly, the court ordered a stay of the court proceedings pending arbitration.26 This decision is consistent with prior case law upholding the validity of unilateral dispute resolution clauses.27 However, the NB Three Shipping decision goes further than previous English case law in that it admits that the party entitled to choose between the fora can exercise such right both as plaintiff and defendant. In other words, even if the other side commenced proceedings first, the beneficiary’s right to choose between litigation and arbitration still subsists.

b. <i>Law Debenture Trust Corporation plc v. Elektrim Finance BV and others [2005]</i>

The question of the validity of a unilateral dispute resolution clause was also subsequently addressed in Law Debenture Trust Corporation plc v. Elektrim Finance BV and others.28 The case concerned a dispute arising out of a complex bond trust deed between, on one side, Elektrim BV and Elektrim S.A., its Polish parent company, respectively the issuer and guarantor of bonds, and, on the other side, Law Debenture Trust Corporation plc, a trustee for the bondholders.29 At the time the dispute arose, in the effect of a series of restatements, the trust deed contained the following dispute resolution clause:

“29.2 Any dispute arising out of or in connection with these presents may be submitted by any party to arbitration for final settlement […].

29.4 The place of any such arbitration shall be London[…].

29.6 The agreement by all the parties to refer all disputes […]. to arbitration […] is exclusive such that neither [the Elek trim parties] shall be permitted to bring proceedings in any other court or tribunal […].

29.7 Notwithstanding cl 29.2, for the exclusive benefit of the Trustee [Law Debenture] and each of the Bondholders, [the Elektrim parties] hereby agree that the Trustee and each of the Bondholders shall have the exclusive right, at their option, to apply to the courts of England, who shall have non-exclusive jurisdiction to settle any disputes […].”30

Following an alleged default of Elektrim’s obligations under the bonds, Elektrim commenced LCIA arbitration under clause 29.2.31 However, Law Debenture did not wish to have the dispute heard in arbitration proceedings and refused to participate. Instead, it commenced proceedings before the English courts seeking a declaration that there was no longer a valid arbitration agreement as a result of it having preferred to go to litigation.32 Law Debenture claimed that the commencement of arbitration proceedings did not affect its right to refer the dispute to the court instead. Elektrim, on the other hand, argued that since the arbitration was already pending, it was for the arbitral tribunal to decide on the jurisdictional question as to whether or not there was a valid arbitration agreement.

First, the court found that it was best placed to consider the question of jurisdiction. Mann J gave the following reasons:

“I do not think it right that the arbitrators in this case should decide whether or not they have jurisdiction at all, bearing in mind the root and branch objections to their jurisdiction raised by Law Debenture. It is the only cost-effective thing to do. To send the matter off to the arbitrators now would require the extra cost of the constitution of the arbitral body (three arbitrators), a mechanism for the determination of the points by them (whether by an oral hearing o[r] not), and a possible appeal back to this court at the end. That hardly seems sensible.”33

Second, the court found that the unilateral dispute resolution clause was valid under English law, even though it gave “one-sided” benefits to one party. The court held that as a part of a contract between commercial parties, the clause had to be interpreted giving it a commercially sensible effect, which in the eyes of the court meant that it provided for additional advantage to one party only.

Third, the court held that Law Debenture had the option to go to court, even though the arbitration proceedings were already pending. According to the court, any other solution would make the beneficiary’s right dependent on questions of accidental timing. Mann J rejected Elektrim’s argument that Law Debenture had the right to litigate only if it started its proceedings before the arbitration proceedings were pending:

“[…] that seems […] to be a very strange way of resolving the alleged conflict or interaction. There is absolutely no commercial rationale behind that whatsoever, and it means that whether the dispute is arbitrated or litigated will depend on potential accidents of timing or conceivably an unseemly scramble.”34

The court, therefore, found that regardless of the arbitration proceedings initiated earlier by the Elektrim parties, Law Debenture was entitled to exercise the option clause.

c. <i>Mauritius Commercial Bank Ltd v. Hestia Holdings Ltd and Sujana Universal Industries Ltd [2013] </i>

In the wake of the Rothschild decision in France, the English courts again confirmed their position in favour of unilateral dispute resolution clauses in the case of Mauritius Commercial Bank Ltd v. Hestia Holdings Limited and Sujana Universal Industries Limited.35 The case concerned a facility agreement between Mauritius Commercial Bank Ltd (MCB), and Hestia Holdings Limited, a Mauritian-registered company, with Sujana Universal Industries Limited acting as guarantee of Hestia’s obligations. Both the facility agreement and the guarantees given by Sujana were to be governed by the law of Mauritius while disputes were to be referred to the exclusive jurisdiction of the courts of Mauritius.36 A subsequent amendment agreement between MCB, Hestia and Sujana provided for, among other terms, a new governing law (English law) and a unilateral dispute resolution clause in favour of the lender:

“Clause 23 [Governing Law]

This Agreement and any dispute or claim arising out of, or in connection with, it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English Law.

Clause 24.1 [Jurisdiction]

(a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a ‘Dispute’).

(b) The Parties agree that the courts of England are the most appropriate and the most convenient courts to settle Disputes and accordingly no Party will [argue] to the contrary.

((c) This Clause 24.1 is for the benefit of the Lender only. As a result the Lender shall not be prevented from taking proceedings related to a Dispute in any other courts in any jurisdiction. To the extent allowed by law the Lender may take concurrent proceedings in any number of jurisdictions.”37

As Hestia defaulted on the repayment of the loan, MCB brought claims against it and Sujana in the English courts.38 The defendants argued that the English court did not have jurisdiction to try the claim, since clause 24.1 was invalid under its proper law, whether that of Mauritius or England, and that in the absence of a valid English jurisdiction agreement, the court did not have jurisdiction over Hestia and Sujana. More precisely, the defendants alleged that the jurisdiction agreement contained in clause 24.1 remained subject to Mauritian law, notwithstanding clause 23, and that under Mauritian law, which is based on French law (with Mauritian courts often guided by French jurisprudence), one-sided jurisdiction agreements are ineffective (as a result of Rothschild). Alternatively, they argued that if clause 24.1 was governed by English law, it was too one-sided in allegedly allowing MCB to sue anywhere in the world to be compatible with fundamental principles regarding equal access to justice as reflected in Article 6 of the European Convention of Human Rights (providing for a right to fair trial).39

The court rejected the defendants’ submissions. First, it held that the dispute resolution clause in the amended agreement was governed by Mauritian law in spite of clause 23 regarding the change in applicable law from Mauritian to English law.40 Despite having held that Mauritian law was irrelevant, the court embarked on some remarks on the Rothschild decision and Mauritian law. Popplewell J stated:

“[...] the decision [in Rothschild] is controversial and has been subjected to criticism by commentators, both domestically and in the context of Article 23 [of the Brussels Regulation] which requires an autonomous interpretation.”41

“From the material in the reports to which my attention was drawn, I would have concluded that there was a good arguable case that under Mauritian law clause 24.1 would be treated as valid and effective notwithstanding the decision in Rothschild.”42

Second, the court confirmed the validity under English law of the unilateral dispute resolution clause, referring to NB Three Shipping, Law Debenture as well as Lornamead Acquisitions Limited v. Kaupthing Bank HF.43 The defendants’ argument nesting on public policy and access to justice matters was rejected. Popplewell J stated:

“If, improbably, the true intention of the parties expressed in the clause is that MCB should be entitled to insist on suing or being sued anywhere in the world, that is the contractual bargain to which the court should give effect. The public policy to which that was said to be inimical was equal access to justice as reflected in Article 6 of the ECHR. But Article 6 is directed to access to justice within the forum chosen by the parties, not to choice of forum. No forum was identified in which the Defendants’ access to justice would be unequal to that of MCB merely because MCB had the option of choosing the forum.”44

Accordingly, the defendants’ application was consequently dismissed.

As a concluding remark on this line of English cases, it should be noted that all of the above cases have arisen out of complex financing transactions with multiple parties in a cross-border scenario, which raises the question as to how the English courts would deal with a clause where a party is an individual, such as in the French Rothschild case.45 It might well be that the position could be different particularly in cases involving consumers, where the considerations of consumer protection law would be applicable.

5 Conclusion

In sum, while English courts have consistently upheld the validity of unilateral dispute resolution clauses, the recent decisions of the highest courts in Bulgaria, Russia and France have gone in the opposite direction. An uneven landscape has thus emerged and parties with existing unilateral jurisdiction clauses should be put on notice that judgments or arbitral awards rendered on the basis of a unilateral jurisdiction clause may face enforcement challenges in some jurisdictions. It remains to be seen whether the question will be referred to the Court of Justice of the European Union, and in the meantime, parties should be advised that unilateral options will have to be carefully drafted and exercised.

1
Judgment of 26 September 2012, X v. Banque Privée Edmond de Rothschild Europe, Cass. Civ. (1ère) (French Cour de cassation).

2
See Russian Court Move Seen as Power Grab, Financial Times, 4 December 2012.

3
In the original:“ Les litiges éventuels entre le client et la banque seront soumis à la juridiction exclusive des tribunaux de Luxembourg. La banque se réserve toutefois le droit d’agir au domicile du client ou devant tout autre tribunal compétent à défaut de l’élection de juridiction qui précède.”

4
Judgment of 18 October 2011, Banque Privée Edmond de Rothschild Europe v. X, No 11/03572 (Paris Cour d’appel).

5
“Il n’autorise pas une clause à abandonner à une partie le choix d’une quelconque juridiction à sa discrétion”, ibid.

6
“Mais attendu qu’ayant relevé que la clause, aux termes de laquelle la banque se réservait le droit d’agir au domicile de Mme X... ou devant “tout autre tribunal compétent”, ne liait, en réalité, que Mme X... qui était seule tenue de saisir les tribunaux luxembourgeois, la cour d’appel en a exactement déduit qu’elle revêtait un caractère potestatif à l’égard de la banque, de sorte qu’elle était contraire à l’objet et à la finalité de la prorogation de compétence ouverte par l’article 23 du Règlement Bruxelles I”, Judgment of 26 September 2012, X v. Banque Privée Edmond de Rothschild Europe, Cass. Civ. (1ère) (French Cour de cassation).

7
French Civil Code, Art. 1170.

8
See, e.g., Judgment of 15 May 1974, Société Sicaly v. Société Grasso Stacon NV, Bull. 1974 I No 143, p. 122 Cass. Civ. (1ère) (French Cour de cassation). Cf. Judgment of 4 December 1990, Société Edmond Coignet v. COMIT, Bull. 1990 I No 273, p. 193, Cass. Civ. (1ère) (French Cour de cassation).

9
Magnus and Mankowski, Brussels I Regulation, 2nd ed., Sellier European Law Publishers, Art. 23, ¶76.

10
See, e.g., Cuniberti, Journal des tribunaux Luxembourg, 2013, 7 (8ff.); Vidal, Des pièges de la rédaction des clauses non exclusives d’attribution de jurisdiction, LeBlogCarler, 13 February 2013; Tahri, Illicéité d’une clause attributive de juridiction purement potestative, Dalloz Actualités, 15 October 2012; Martel, A la découverte de la clause attributive de juridiction potestative, Dalloz 2012, 2876 (2876ff.).

11
Regulation No .1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast), Art. 25 (1) (“If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State.”).

12
Magnus and Mankowski, Brussels I Regulation, 2nd ed., Sellier European Law Publishers, Art. 23, ¶144.

13
The possibility of such unilateral clauses was permitted prior to the adoption of the Brussels Regulation. Article 17 of the Brussels Convention of 1968 states that “if an agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.” This provision was removed from the text of Article 23 because it was deemed to unnecessarily introduce uncertainty and unpredictability as it was difficult to precisely determine whether a clause would benefit only one party or not. Arguably, such a deletion was all the more justified since Article 23 of the Regulation now provides: “unless the parties have agreed otherwise” which allows the parties to alter the exclusive nature and effect of their jurisdiction clause. See, e.g., Magnus and Mankowski, Brussels I Regulation, 2nd ed., Sellier European Law Publishers, Art. 23, ¶¶7-9.

14
See, e.g., Judgment of 22 May 2008, Société de Ruiter’s new Roses International BV et alia v. Société STAR 2000 SHA, No 07/13465 (Aix en Provence Cour d’appel) (invalidating a unilateral jurisdictional clause in which one party could designate, without any restrictions, where to bring the dispute).

15
See, e.g., Judgment of 9 November 2000, Coreck Maritime GmbH v. Handelsveem BV and Others, Case C-387/98, ¶15 (European Court of Justice, 5th Chamber) (it suffices if the clause provides for “the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them. Those factors, which must be sufficiently precise to enable the court seized to ascertain whether it has jurisdiction, may where appropriate, be determined by the particular circumstances of the case.”).

16
See, Judgment of 2 September 2011, No. 71 in commercial case No. 1193/2010 (Bulgarian Supreme Court), on file with author.

17
See, e.g., Judgment of 19 June 2012, CJSC Russian Telephone Company v. Sony Ericsson Mobil Communications Rus LLC, No. A40-49223/11-112-401 (Supreme Arbitrazh Court of the Russian Federation) (The court held “that unilateral dispute resolution clauses are contrary to the basic principle of procedural equality of the parties, adverse to the nature of the dispute resolution process, and breach the balance between the interests of the parties.”). See http://kluwerarbitrationblog. com/?s=supreme+arbitrazh+court

18
NB Three Shipping Ltd v. Harebell Shipping Ltd [2004] App.L.R. 10/13.

19
Id., ¶7.

20
Id., ¶¶3-4.

21
Id., ¶4.

22
English Arbitration Act 1996 s 9 (1) (‘A party to an arbitration agreement against whom legal proceedings are brought [whether by way of claim or counterclaim] in respect of a matter which under the agreement is to be referred to arbitration may [upon notice to the other parties to the proceedings] apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter.’).

23
NB Three Shipping Ltd v. Harebell Shipping Ltd [2004] App.L.R. 10/13, ¶¶4-5.

24
Id., ¶11.

25
Id., ¶11.

26
Id., ¶13.

27
Woolf v. Collis Removal Service [1948] 1 K.B. 11. One notable case with a different outcome, Tote Bookmakers Ltd v. Development & Property Holding Co. Ltd, Chancery Division [1984], 2 W.L.R. 603, was overruled by Pittalis v. Sherefettin [1986] 2 All ER 227, 231 (English Ct. App.).

28
Law Debenture Trust Corp Plc v. Elektrim Finance BV [2005] EWHC 1412 (Ch) (English High Ct.).

29
Id., ¶1.

30
Id., ¶3.

31
Id., ¶5.

32
Id., ¶5. The Trust relied on s 72(1)(a) of the English Arbitration Act 1996 (‘A person alleged to be a party to arbitral proceedings but who takes no part in the proceedings may question — [...] whether there is a valid arbitration agreement[...]’).

33
Law Debenture Trust Corp Plc v. Elektrim Finance BV [2005] EWHC 1412 (Ch) (English High Ct.), ¶36.

34
Id., ¶45.

35
Mauritius Commercial Bank Limited v. Hestia Holdings Limited and Sujana Universal Industries Limited [2013] EWHC 1328 (Comm) (English High Ct.).

36
Id., ¶¶1-3.

37
Id., ¶10.

38
Id., ¶11.

39
Id., ¶12.

40
Id., ¶32.

41
Id., ¶34.

42
Id., ¶36.

43
Lornamead Acquisitions Limited v. Kaupthing Bank HF [2011] EWHC 2611 (Comm) (English High Ct.), [2013] 1 BCLC 73.

44
Mauritius Commercial Bank Limited v. Hestia Holdings Limited and Sujana Universal Industries Limited [2013] EWHC 1328 (Comm) (English High Ct.), ¶43.

45
As mentioned, a clause providing one party with the option between litigation and arbitration, and the other party with only the right to arbitrate, has been previously upheld in a commercial setting in France, see e.g. judgment of 25 September 1972, 1973 Rev. arb. 164 (Angers Cour d’appel) (asymmetrical arbitration clause not contrary to public policy). See also Draguiev, ‘Unilateral Jurisdiction Clauses: The Case for Invalidity, Severability or Enforceability’, Journal of International Arbitration, volume 31(1) (2014), p. 26.