Updated: Jun 28
International commercial arbitration (‘ICA’) is the foremost dispute resolution process for international contracts. Under some arbitration agreements, a party may have the unilateral right to choose the forum of proceedings, as well as whether to arbitrate in the first place – such clauses are called unilateral option clauses (‘UOCs’).
Jurisdictions across the world have attempted to balance the clashing concepts of party autonomy and equality of treatment in arbitration, ultimately providing little clarity on the status of UOCs. This article – the first in a two-part analysis – gives an overview of different jurisdictions’ treatment of UOCs across the world.
Forms of Unilateral Option Clauses
A unilateral option clause (‘UOC’) refers to the choice of one party (and lack of reciprocal choice for the other party) regarding a certain form of dispute resolution. Though often discussed with regard to international arbitration, these clauses can provide a choice between arbitration and litigation or a choice between jurisdictions in which litigation may be brought. Essentially, they give one party two forms of choice: (1) commencing proceedings or not; and (2) where to commence proceedings.
Unilateral Option Clauses Around the World
Validity of UOCs falls down the age-old line of common vs civil law.[i] Jurisdictions including the UK, Australia and Singapore have upheld UOCs in line with the common law tradition of putting control in the hands of commercial parties.[ii] Civil law jurisdictions, however, have struck down UOCs on numerous occasions for reasons ranging from lack of mutuality in contractual terms to procedural equality.[iii]
The birthplace of UOCs in England was in 1966 with the Baron v Sunderland decision of the Court of Appeal.[iv] However, a mere 20 years after deciding that arbitration agreements required mutuality, the Court pulled a 180 degree turn with its finding in the Pittalis v Sherefettin case.[v] Commercial parties, the Court said, should have the freedom to make and consent to agreements that were not mutual in obligation – and so was born the strong line English jurisprudence supporting UOCs. In both unilateral arbitration clauses[vi] and clauses limiting recourse to litigation in one jurisdiction,[vii] the English courts have given primacy to party autonomy over what is ‘fair’.
Australia’s High Court upheld the validity of a UOC in the PMT Partners case of 1995,[viii] reasoning that the correct construction of the clause in that instance didn’t provide constraint on a party’s right to choose the form of dispute resolution they wished.
Until 2009, decisions of the Delhi High Court in India had invalidated unilateral option clauses.[ix] The early case of Bhartia Cutler the Court presumed that the Indian Arbitration and Conciliation Act gave mutual invocation rights in refusing to enforce the exclusive right to arbitrate, despite clear consent to the clause.[x] Reaching the same conclusion, the Court in the Emmsons case voided a UOC under the Indian Contract Act.[xi] Unilateral invocation was held to infringe one party’s right to recourse through legal proceedings – a reasoning that was followed again in the Lucent Technology case.[xii]
In a 2015 case, the Madras High Court accepted that arbitration agreements didn’t necessarily require mutuality.[xiii] However, on the facts the party with a unilateral option couldn’t invoke the arbitration clause as they had participated in litigation and had not objected at the commencement of proceedings. Given that the only UOC upheld as valid in India was in an agreement governed by English law,[xiv] it seems unlikely that the courts will blindly accept arbitration or litigation clauses without bilateral invocation rights.
Calcutta, however, may be a different story. The Calcutta High Court has held a number of UOCs valid since 1949,[xv] eventually relying on the UK Pittalis[xvi] decision to come into line with the common law in 2005.[xvii]
The Taylor v Dyna Jet decision of the Singapore Supreme Court in 2017 added to the complex tapestry of jurisprudence on unilateral clauses.[xviii] In upholding the clause giving Dyna Jet the exclusive option to initiate arbitration, the Court refused Taylor’s claim that Dyna Jet could not commence litigation in Singapore courts.
A similar outcome to Dyna Jet was found by the Court of Appeal of Hong Kong in a 2001 case that shows the traditionally pro-arbitration jurisdiction favouring acceptance of UOCs.[xix]
The Court of Appeal of Madrid found in 2013 that UOCs are valid,[xxiii] supporting the conclusion that such clauses will generally be accepted in Spain.
Somewhere in the Middle
The most contentious UOC dispute arose in Russia in 2012 with the Russian Sony Ericsson case.[xxiv] Sony Ericsson entered into a contract with the Russian Telephone Company (RTC), which specified that disputes were to be resolved by ICC arbitration but that Sony Ericsson could recover debts in ‘any competent court’. Despite the clause, RTC filed their dispute in a Russian court to no avail.
The dismissal eventually ended up in the Supreme Arbitrazh Court, which found the clause contrary to the fair balance between the parties and the equality of arms principle, relying on European Court of Human Rights[xxv] and Russian Constitutional Court cases.[xxvi] Instead of invalidating the clause, however, the Court read it as extending equal rights to both parties – changing the entire intent of the contracting companies.
After this confusing and controversial outcome came the Piramida LLC case,[xxvii] in which the Chamber on Economic Disputes of the Supreme Court of Russia decided that a clause giving default to litigation but having the option of arbitration ‘depending on the choice of a claimant’ didn’t violate equality of arms.[xxviii]
Other cases have found UOCs invalid in their entirety due to the principle of equality between the parties,[xxix] but the situation remained murky until the Presidium of the Russian Supreme Court issued a Digest of Court Practice Relating to Judicial Assistance and Control over Domestic and International Arbitration in 2018.[xxx] The guidance provides that UOCs violate the principles of equality and competitiveness.
Until 2012 in France, UOCs were A-Okay.[xxxi] Then came Rothschild.[xxxii] In this case before the Cour de Cassation, Mme ‘X’ borrowed money from a bank (Rothschild) under a lender agreement that gave exclusive jurisdiction to the courts of Luxembourg but where the bank could initiate proceedings in any number of jurisdictions. In amongst civil law concepts such as ‘prorogation’ and ‘potestative conditions’, the clause was found void due to the infinite jurisdictional choice provided to the bank.
In keeping with this trend, the Cour de Cassation invalidated a similar clause in the Crédit Suisse case of 2015 that gave the bank a choice of any ‘competent court’.[xxxiii] Critical to the opposite finding made in the Apple case of 2015 was the fact that the clause gave the choice only to Apple to commence proceedings against its reseller where harm was occurring or where the reseller was domiciled.[xxxiv] This specificity provides evidence that sufficiently narrow clauses may, in fact, pass the French UOC test.
The following year, the Rennes Court of Appeal revisited, but didn’t necessarily apply, the Rothschild reasoning in the Société Générale case.[xxxv] After flipping between three different courts, the case was ultimately found to belong in Paris, the domicile of Société Générale – the bank with the sole option – despite the default jurisdiction being Zurich.
France, therefore, remains a question mark for UOC cases.
Jurisprudence from the United States is a whirlwind of confusion across the country. Though it seems that in ‘unfair’ circumstances of employment contracts and lender agreements may invalidate UOCs, many States have enforced one-sided agreements.[xxxvi]
One case in California saw a UOC being struck down when presented in a take-it-or-leave-it contract to the weaker party.[xxxvii] Similar ‘grossly unequal’ power imbalances have found UOCs invalidated for unconscionability.[xxxviii] In striking down UOCs for lack of mutuality, the Supreme Court of Arkansas has commented that agreements to arbitrate ‘should not be used as a shield against litigation by one party while simultaneously reserving solely to itself the sword of a court action’.[xxxix]
Poland’s arbitration law enshrines the principle of equality of the parties,[xlii] rendering UOCs contrary to Polish law. The Supreme Court has raised concerns that procedural fairness rights would be impacted by the benefits given to one party in taking claims to arbitration if such option was not given to both parties.[xliii]
In 2011, Bulgaria’s Supreme Court of Cassation followed the Rothschild reasoning in a case invalidating a UOC between a lender and borrower.[xliv] The amorphous concepts of morality and good faith were said to be violated by the clause’s limitation on the borrower bringing claims in domestic litigation, while the lender could take disputes to arbitration or elsewhere around the world. Here, the issue of universality arose as the primary basis for the Court’s decision was that the UOC was contrary to domestic contract law.[xlv]
Germany’s law does not preclude UOCs in principle,[xlvi] but in practice multiple cases have invalidated one-sided clauses.[xlvii] A critical consideration before the German Supreme Court was the disproportionate effect on the party without the option of arbitration should they initiate litigation proceedings that may then be diverted to arbitration.[xlviii] It seems that manifest advantage to one party or unreasonable disadvantage to the other party may result in invalidity under the German Civil Code.[xlix] Accordingly, arbitration proceedings could be refused if the option is not exercised before litigation commences and contracts of adhesion are likely to increase the risk of invalidity.
The situation in the United Arab Emirates is also questionable.[l] Although agreements to arbitrate are enforced by statute,[li] courts in the UAE are less accepting than common law jurisdictions. This attitude is largely due to the requirement of clear joint intention to submit to arbitration,[lii] which ‘must be expressly agreed upon because it involves a departure from the path of litigating’. [liii] The 2019 decision of the Abu Dhabi Global Market (ADGM) Court considered UOCs as valid,[liv] creating questions about reversing the previous trend of striking down such clauses. It should be noted, however, is that the ADGM free zone is governed by laws derived from English common law. Accordingly, the validity of UOCs in the UAE and under UAE law is not yet clear.
The position in the UAE is similar to Turkey, where courts have emphasized the need for proof of both parties referring disputes to arbitration. For example, the Turkish Court of Appeal invalidated a clause giving one party the right to choose arbitration in 2009. Then, in 2013, the Court invalidated a UOC that provided for arbitration and gave residual jurisdiction to courts of Istanbul when disputes couldn’t be resolved.[lv] The Court found that the lack of clear and unequivocal intent to submit disputes to arbitration violated the Turkish International Arbitration Law. However, in a confusing turn just one year later, the Court validated a similar clause.[lvi] In this case the UOC was significantly more detailed, lending additional support to the argument that well-drafted clauses may hold up across traditionally UOC-negative jurisdictions.[lvii]
Jurisdictions such as Brazil require consent to refer disputes to arbitration under domestic law. Although no clear jurisprudence exists yet, there is concern that these jurisdictions will be unlikely to uphold or validate UOCs giving only one party the right to arbitrate.
In Japan agreements are typically enforceable on their terms alone, meaning UOCs could be upheld as a creature of contract.
South Africa’s Law Commission commented on UOC-type terms as carrying a risk of unfairness in a 2001 report.[lviii] As this hesitation was limited to consumer contracts, UOCs between commercially sophisticated companies may be valid under South African law.[lix] Similar treatment of UOCs is found in Sweden, with the exception of clauses agreed to where one party held excessive bargaining power in negotiations.[lx]
Except where a consumer’s judicial recourse is restricted, the effect of the clause is unconscionable or constitutes an abuse of rights, UOCs are valid under the laws of Portugal.[lxi] The validity of a UOC was upheld by the Portuguese Court of Appeals in an application for enforcement of an award.[lxii] As the Court found no issue in the constitution of the arbitral tribunal, the award was enforced although it noted that such clauses would be invalid if they caused one party ‘gross inconvenience’.
So, Are They an Option?
No clear answer as to whether UOCs are the right way to go in commercial transactions can be derived from the outcome of cases across the world. What is clear is that these clauses should be treated with caution and drafted with care.
For now, party autonomy and procedural fairness are locked in a struggle of jurisdictions over whether the right to a certain form dispute resolution is, or can ever really be, one-sided.
Written by Amy Langley
International Affairs Officer
[i] See, generally, Deyan Draguiev, ‘Unilateral Jurisdiction Clauses: The Case for Invalidity, Severability or Enforceability’ (2014) 31(1) Journal of International Arbitration 19. [ii] See, generally, Berard, Dingley, Brown, Unilateral Option Clauses -2017 Survey (Report, January 2017) <https://www.cliffordchance.com/content/dam/cliffordchance/briefings/2017/01/unilateral-option-clauses-2017-survey.pdf>. [iii] See Simon Nesbitt and Henry Quinlan, ‘The Status and Operation of Unilateral or Optional Arbitration Clauses’ (2006) 22(1) Arbitration International 133. [iv] Baron v Sunderland Corporation  2 QB 56. [v] Pittalis v Sherefettin  1 QB 868. [vi] See, eg, NB Three Shipping v Harebell Shipping  EWHC 2001 (Comm); Law Debenture Trust Corp plc v Elektrim Finance BV  EWHC 1412 (Ch). [vii] See, eg, Mauritius Commercial Bank v Hestia Holdings Limited  EWHC 1328 (Comm); Barclays Bank plc v Ente Nazionale di Previdenza Ed Assistenza dei Medici e Degli Odontoiatri  EWHC 2857 (Comm); Commerzbank AG v Pauline Shipping Limited Liquimar Tankers Management Inc  EWHC 161 (Comm). [viii] PMT Partners Pty Ltd (in liq) v Australian National Parks & Wildlife Service  HCA 36, -. [ix] See Nishanth Vasanth, ‘Examining the Validity of Unilateral Option Clauses in India: A Brief Overview’, Kluwer Arbitration Blog (Blog post, 20 October 2017) <http://arbitrationblog.kluwerarbitration.com.ezproxy.bond.edu.au/2017/10/20/examining-validity-unilateral-option-clauses-india-brief-overview/?doing_wp_cron=1591659234.2144770622253417968750>; and Siddarth S Aatreya, ‘Navigating the Labrynth: Indian Courts on One-Way Arbitration Clauses’, Kluwer Arbitration Blog (Blog Post, 30 August 2017) <http://arbitrationblog.kluwerarbitration.com/2017/08/30/navigating-labyrinth-indian-courts-one-way-arbitration-clauses/?doing_wp_cron=1591669330.5398819446563720703125> (‘Aetreya’). [x] Bhartia Cutler Hammer v AVN Tubes (1995 (33) DRJ 672). [xi] Indian Contract Act (1872) s 28; Emmsons International Ltd. v Metal Distributors (2005 (80) DRJ 256). [xii] Lucent Technology v ICICI Bank (2009 SCC OnLine Del 3213). [xiii] Castrol India Ltd. v Apex Tooling Solutions ((2015) 1 LW 961 (DB)). [xiv] Fuerst Day Lawson Ltd. v Jindal Exports Ltd. (MANU/DE/3204/2009). [xv] Kedarnath Atmaram v Kesoram Cotton Mill (1949) SCC OnLine 382. [xvi] Pittalis v Sherefettin  1 QB 868. [xvii] S&D Securities v Union of India, 2005 124 CompCas 340. For an overview of Indian jurisprudence see Aetreya (n ix). [xviii] Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd  SGCA 32, available at <https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/delivered-grounds-of-decision---wilson-taylor-asia-pacific-v-dyna-jet-2017-sgca-32-(260417)-pdf.pdf>. For analysis see Herbert Smith Freehills, ‘Singapore Court of Appeal confirms the validity of “unilateral option to arbitrate” clauses’, Arbitration Notes (Blog Post, 12 May 2017) <https://hsfnotes.com/arbitration/2017/05/12/singapore-court-of-appeal-confirms-the-validity-of-unilateral-option-to-arbitrate-clauses/>. [xix] China Merchant Heavy Industry Co Ltd v JGC Corp (Hong Kong Court of Appeal)  3 HKC 580 (CLOUT case 449) available at <https://www.uncitral.org/clout/clout/data/hkg/clout_case_449_leg-1674.html>. [xx] Corte di Cassazione, Judgment No. 2096 (22 October 1970); Corte di Cassazione, Judgment No. 5705 (11 April 2012) Grinka in liquidazione v. Intesa San Paolo, Simest, HSBC. See Draguiev (n…) 28 n 27. [xxi] Sportal Italia v Microsoft Corporation - Sportal Italia v. Microsoft Corp., Corte D’Appello di Milano, Judgment, 22 Sep. 2011. [xxii] Corte di Cassazione, Judgment No. 5705 (11 April 2012) Grinka in liquidazione v. Intesa San Paolo, Simest, HSBC. [xxiii] Court of Appeal of Madrid (Audiencia de Madrid, Sección 28) Decision of 18 October 2013, Camimalaga S.A.U. v DAF Vehiculos Industriales S.A. and DAF Truck N.V. [xxiv] Supreme Arbitration (Commercial) Court of Russian Federation, Decision No. 1831/12 (19 June 2012) Russkaya Telephonnaya Kompaniya v. Sony Ericsson Mobile Communications Rus Ltd. Liability Co. For an overview of the case see Timur Aitkulov, ‘The Supreme Arbitrazh Court of the Russian Federation rules on the validity of dispute resolution clauses with a unilateral option’, Kluwer Arbitration Blog (Blog Post, 11 September 2012) <http://arbitrationblog.kluwerarbitration.com/2012/09/11/the-supreme-arbitrazh-court-of-the-russian-federation-rules-on-the-validity-of-dispute-resolution-clauses-with-a-unilateral-option/?_ga=2.116555974.1189927580.1591659531-2092906084.1591659531&doing_wp_cron=1591670727.6677401065826416015625>. For commentary on UOCs in Russia see Mikhail Samoylov, ‘The Evolution of Unilateral Arbitration Clauses in Russia’, Kluwer Arbitration Blog (Blog Post, 1 October 2015) <http://arbitrationblog.kluwerarbitration.com/2015/10/01/the-evolution-of-unilateral-arbitration-clauses-in-russia/?_ga=2.55981611.1470268757.1591571042-1685040976.1591321203&doing_wp_cron=1591659524.1167149543762207031250>. [xxv] Suda v Czech Republic (European Court of Human Rights, Application No. 1643/06, 28 October 2010); Batsanina v Russia (European Court of Human Rights, Application No. 3932/02, 14 September 2009); Steel and Morris v United Kingdom (European Court of Human Rights, Application No. 68416/01, 6 April 2004). [xxvi] Конституционный Суд Российской Федерации [Constitutional Court of the Russian Federation], Decision No. 20-π (20 July 2011); Конституционный Суд Российской Федерации [Constitutional Court of the Russian Federation], Decision No. 4-π (27 February 2009); Конституционный Суд Российской Федерации [Constitutional Court of the Russian Federation], Decision No. 18-π (8 December 2003). [xxvii] Supreme Court of Russia, Decision No. 310-ЭС14-5919 of 21 May 2015, Piramida LLC v BOT LLC. See Samoylov (n xxiv). [xxviii] Supplier Contract, Section 10.3. [xxix] Arbitrazh [Circuit Court of Moscow], Decision No. A40-125181/2013 (14 March 2016) Emerging Markets Structured Products B.V. v Zhilindustriya LLC and others; Supreme Arbitrazh Court [Supreme Arbitration (Commercial) Court of Russia], Novokuznetsky cold-store combine OJSC v UMO LLC (2014). [xxx] Digest of Case Law Involving Judicial Assistance and Oversight in Relation to Domestic and International Arbitration (26 Dec 2018) available in Russian at <http://www.supcourt.ru/documents/all/27518/>. See Clifford Chance, ‘Supreme Court of the RF Issues Digest of Case Law on the Issues of Arbitration’, . See also Alexander Gridasov and Maria Dolotova, ‘Unilateral Option Clauses: Russian Supreme Court Puts an End to the Long-Lasting Discussion’, Kluwer Arbitration Blog (Blog Post, 7 May 2019) <http://arbitrationblog.kluwerarbitration.com.ezproxy.bond.edu.au/2019/05/07/unilateral-option-clauses-russian-supreme-court-puts-an-end-to-the-long-lasting-discussion/?doing_wp_cron=1591659235.9989790916442871093750>. [xxxi] Cour d’Appel d’Angers, Decision (25 September 1972); Cour de Cassation [French Court of Cassation], Decision, (15 May 1974). See, generally, Norton Rose Fullbright, ‘France and the unilateral jurisdiction clause’ (Publication, November 2015) <https://www.nortonrosefulbright.com/en-in/knowledge/publications/75a44e66/france-and-the-unilateral-jurisdiction-clause>. [xxxii] Cour de Cassation [French Court of Cassation], First Chamber (26 September 2012) Mme ‘X’ v Banque Privée Edmond de Rothschild (Decision No. 11-26.022). [xxxiii] Cour de Cassation [French Court of Cassation], First Civil Chamber (25 March 2015) Danne v Credit Suisse. [xxxiv] Cour de Cassation [French Court of Cassation], First Civil Chamber (7 October 2015) eBizcuss v Apple Sales International (Case No. 14-16898). [xxxv] Rennes Court of Appeal, (April 2016) Société Générale SA v M. Nicolas Y. and Société Civile ICH and Société NJRH Management Ltd and SELARL AJ Partenaires. [xxxvi] See, eg, M.A. Mortenson Co. v. Saunders Concrete Co., Inc., 676 F.3d 1153, 1158 (8th Cir. 2012); Sablosky v. Edward S. Gordon Co., 535 N.E.2d 643 (N.Y. 1989); Kalman Floor Co. v. Jos. L. Muscarelle, 481 A.2d 553 (N.J. Super. 1984); Willis Flooring, Inc. v. Howard S. Lease Constr. Co., 656 P.2d 1184 (Alas. 1983). [xxxvii] Bragg v Linden Research Inc. (487 F. Supp. 2d 593, 605-11 (E.D. Pa. 2007)). [xxxviii] See, eg, in California: Armendariz v. Foundation Health Psychare Services, Inc., 24 Cal. 4th 83 (Cal. 2000); Montana: Ticknor v. Choice Hotels Intern., Inc., 265 F.3d 931 (9th Cir. 2001); Hull v. Norcom, Inc., 750 F.2d 1547 (11th Cir. 1985). Arnold vs. United Companies Lending Corp. (1998) (Supreme Court of Appeals of West Virginia) available at <http://caselaw.findlaw.com/wv-supreme-court-of-appeals/1460194.html>. [xxxix] Showmethemoney Check Cashers vs. Wanda Williams and Sharon McGhee (2000) No. 99-1398 (Supreme Court of Arkansas) available <https://caselaw.findlaw.com/ar-supreme-court/1171743.html>, following the case of Hull vs. Norcom Inc., 750 F.2d1547 (11th Cir. 1985) (US Court of Appeals). See also E-Z Cash Advance, INC. vs. Harris 60 S.W.3d 436 (Ark. 2001) available at <http://caselaw.findlaw.com/ar-supreme-court/1484904.html>. [xl] Decision of Beijing Higher People’s Court (1999). See also Beijing Light Automobile Co v Connell (award) 5 June 1998. [xli] Arbitration Law of the People’s Republic of China, Standing Committee of the Eighth National People’s Congress, Order No. 31, 31 August 1994, Article 16. [xlii] Procedural Civil Code [Arbitration Law] 1994, amended in 2005 (Republic of Poland) Article 1161(2). [xliii] Sąd Najwyższy [Polish Supreme Court] Decision of 19 October 2012, Case No. V CSK 503/11; Sąd Najwyższy [Polish Supreme Court] Decision of 24 November 2010, Case No. II CSK 291/10. [xliv] Върховен касационен съд - Vǎrhoven kasatsionen sǎd [Bulgarian Supreme Court of Cassation], Second Chamber, Decision No. 71 of Commercial Case No. 1193/2010, Judgment of 2 September 2011 (Bulgarian Supreme Court) available in Bulgarian at: <http://domino.vks.bg/bcap/scc/webdata.nsf/Keywords/C8F68993563DD5FFC22578FF00499C60>. [xlv] Obligations and Contracts Act 1993 (Bulgaria), Article 26. [xlvi] Bundesgerichtshof (‘BGH’) [German Federal Court of Justice], Case No. X ZR 23/87, 26 January 1989 (Zweibrücken). [xlvii] Bundesgerichtshof (‘BGH’) [German Federal Court of Justice], Case No. III ZR 141/90, 10 October 1991 (Bremen); Bundesgerichtshof (‘BGH’) [German Federal Court of Justice], Case No. X ZR 23/87, 26 January 1989 (Zweibrücken). [xlviii] Bundesgerichtshof (‘BGH’) [German Federal Court of Justice], Case No. III ZR 133–97, 24 September 1998, (Jena). See, generally, Philip Clifford and Oliver Browne, ‘Finance Agreements: A Practical Approach to Options to Arbitrate’ (2007) 1(6) Global Arbitration Review 39, 40 ‘Table 1’ <https://www.lw.com/upload/pubContent/_pdf/pub1762_1.pdf>. [xlix] Bürgerliches Gesetzbuch [Civil Code] (Germany) 1900, BGB, 3719, ss 138, 307(1). [l] Richard Ashmore, ‘Unilateral Option to Arbitrate: Valid in the UAE?’, Kluwer Arbitration Blog (Blog Post, 4 March 2015) <http://arbitrationblog.kluwerarbitration.com.ezproxy.bond.edu.au/2015/03/04/unilateral-option-to-arbitrate-valid-in-the-uae/?doing_wp_cron=1591659248.7122290134429931640625>. [li] Civil Procedure Code 1992 (United Arab Emirates) Federal Law No. 11/1992, Article 203(5). [lii] Dubai Court of Cassation, Petition No. 220 (2004): “The arbitration agreement can only be valid when it is proved that the parties had the joint intention to refer their dispute to arbitration, which can be inferred from the existence of an arbitration clause within the agreement or from both parties signing a subsequent arbitration agreement.” [liii] Dubai Court of Cassation, Petition No. 51 (24 May 1992). [liv] A3 v B3  ADGMCFI 0004 (Abu Dhabi Global Market (‘ADGM’) Court, Civil Division, Decision of 4 July 2019) available at <https://www.adgm.com/documents/courts/judgments/2019-adgmcfi-0004--adgmcfi2019007--a3-v-b3--judgment-of-justice-sir-andrew-smith--04072019--redacted.pdf>. See Norton Rose Fulbright, ‘The validity of unilateral option clauses in the UAE’ (Publication, March 2020) <https://www.nortonrosefulbright.com/en-th/knowledge/publications/0e5005b2/the-validity-of-unilateral-option-clauses-in-the-uae>. [lv] Turkish Court of Appeal, Decision No. 2013/16901 of the Turkish 11th Civil Division. [lvi] Turkish Court of Appeal, Decision No. 2014/4607 of the Turkish 15th Civil Division. [lvii] For analysis of Turkish jurisprudence see Esin, Celebi, and Gultutuan, ‘Turkish Court of Appeal fails to clarify validity of ‘hybrid’ jurisdiction-arbitration clauses’ (Legal Article, 16 January 2015) Global Arbitration News <https://globalarbitrationnews.com/turkish-court-of-appeal-fails-to-clarify-validity-of-hybrid-jurisdiction-arbitration-clauses-20150116/>. [lviii] South African Law Commission, Project 94 (May 2001) <https://www.justice.gov.za/salrc/reports/r_prj94_dom2001.pdf>. The report proposed reforms to existing the Arbitration Act in South Africa. [lix] Arbitration Act 1965 (South Africa). [lx] See Clifford and Browne (n xlviii) 40. [lxi] See Duarte G. Henriques, ‘Asymmetrical Arbitration Clauses Under the Portuguese Law’, HG Legal Resources (Legal Article) <https://www.hg.org/legal-articles/asymmetrical-arbitration-clauses-under-the-portuguese-law-31998>. [lxii] Tribunal da Relacao de Lisboa [Court of Appeal of Lisbon] Decision of 12 July 2012, Xilam Animation v Lnk Videos.