RETROSPECTIVITY OF ARBITRATION CLAUSE, UNILATERAL REFERENCE, AND STAY.
A recent decision we obtained from the Court of Appeal outlined the following:
Courts retain statutory duty to evaluate arbitration agreements (Sec 10 vs Sec 18).
A court is not required to defer blindly to an arbitral tribunal under the doctrine of kompetenz-kompetenz (Sec 18). Court must still exercise its duty under sec 10(1).
Unilateral retrospective alteration of arbitration terms is not tenable.
A party cannot rely on a general contractual right to amend its rulebook to unilaterally alter an arbitration clause retrospectively after a dispute has already crystallised and court proceedings have commenced.
Joint Consent Required for Submitting Existing Disputes.
While Sec 9(1) of the AA 2005 and Sec 29 of the Contracts Act 1950 allow parties to submit an already crystallised dispute to arbitration, this right belongs to the parties jointly.
A single party cannot force arbitration for an existing dispute by unilaterally amending a standing variation clause.
Vested Right to Court Jurisdiction Once Seised.
Once a litigant properly commences court proceedings, they hold a vested right to have that dispute adjudicated by the court.
That jurisdiction cannot be divested without the true mutual agreement of both parties specifically directed at that dispute, or an applicable pre-existing arbitration agreement.
Construction and Asymmetric Arbitration Rights.
Where standard-form arbitration clauses are drafted unilaterally by one party, any ambiguity is construed strictly against the drafter (contra proferentem).
The grounds of decision is below.
