Unilateral Arbitration Agreements

On November 25, 2018, the applicant informed the defendant that the ADGM arbitration centre had been set up on October 17, 2018 and was fully operational and exercised its right to replace the arbitration provisions provided for in point 32.2.2. The applicant replaced clauses 32.2.2 and 32.2.3 with a provision that, if the parties fail to reach a solution within 20 days of the date of notification of the dispute, «the dispute will be definitively resolved according to the Arbitration Regulation of the International Chamber of Commerce.» The applicant also amended other provisions of the lease, including the modification of the Abu Dhabi arbitration headquarters to ADGM (so-called «amended provisions»). In Russia, the Supreme Commercial Court of CJSC Russian Telephone Company v Sony Ericsson Mobile Telecommunications Rus LLC has ruled that an UOC has violated the principle that litigants should have the same rights to present their cases. The Russian Supreme Commercial Court appears to have based itself on a principle of equal access to justice, similar to that set out in Article 6 of the ECHR. This would be in stark contradiction to the case of the Commercial Bank of Mauritius, England, mentioned above. Unfortunately, the Russian Supreme Commercial Court has not justified its attitude. The plaintiff attempted to initiate arbitration proceedings against the defendant and invoked the terms of dispute resolution in the lease agreement, which read: «Here is a valid and binding arbitration agreement between the plaintiff and the defendant that disputes arising from a lease agreement between them on October 25, 2017 are subject to arbitration proceedings under the arbitration rules of the International Chamber of Commerce and that the seat of the international Chamber of Commerce or the jurisdiction of Abu Dhabi Global Dhabi Markt. Fourth, the Court considered whether the condition for exercising the section 32.2.2 option was met. Article 32.2.2 only works if «Abu Dhabi Global Market establishes an arbitration centre before the formal opening of an arbitration procedure»; in this case, that is, before 9 December 2018 (i.e.dem date of the icc proceedings).

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