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The compromise clause mentioned above was adopted in the P. T. Tri-M.G. Intra Asia Airlines v Norse Air Charter Limited, [2009] SGHC 13. The exclusive jurisdiction clause was read by the Singapore courts in connection with the compromise clause, to mean that the Singapore courts had initiated the supervisory jurisdiction for each arbitration in accordance with the clause, see our discussion of the case here) The applicants attempted to pursue the arbitration to be satisfied by the defendant. The applicants then introduced the Singapore judicial proceedings on the basis that the two arbitration clauses were pathological clauses, because the clauses do not relate to existing or known procedural rules and do not specify the seat or the law of arbitration. It was therefore impossible to implement the intent of the parties. The respondent argued that the arbitration clauses are not impractical and requested a stay of the legal proceedings in favour of arbitration proceedings. Singapore is also known for its courts` willingness to respect arbitration agreements. As the Singapore Court of Appeal explained in the famous (and highly controversial) Insigma/Alstom case: “In the event of a dispute (contest), the parties agree to: submit to arbitration proceedings, but in the event of a dispute, the Seine Tribunal is exclusively competent” – (Failure, cf.

Craig, Park and Paulsson, International Chamber of Commerce Arbitration (3ed., Oceana, 2000), p. 128) “The disputes arising under this agreement are determined by a single arbitrator, who refused to play the role of authority of the Order by the Director General of the World Health Organization” (The Director-General of WHO). As a result, the ICC appointed an arbitrator after the rejection. The appointment of the arbitration award by the ICC was rendered by the Federal Court in the judgment of April 16, 1984, 1986 Rev. Arb. 596, which may be executed at Gary Born, International Commercial Arbitration Vol 1 in s. 683) According to Section 6 of the International Arbitration Act, where the court on a prima facie basis that the arbitration agreement is not “null and void, inactive or cannot be enforced,” the judicial proceedings must be interpreted in favour of arbitration proceedings. It has been 56 years since the article that referred to the term “pathological clauses” was published in 1974.

[1] Over the years, many conferences, magazine articles and entire chapters have been devoted to the theme of erroneous arbitration clauses and countless cases have been addressed. One would expect that, as a result of all this, pathological litigation and arbitration clauses would be a thing of the past. But that is not the case. In an order of November 26, 2019,[6] the Indian Supreme Court considered a compromise clause under which the director general of one of the parties was exclusively empowered to appoint the arbitrator. The Tribunal found that the arbitrator appointed in this manner would not be completely impartial and that such a clause would not be valid. As explained above, all pathological arbitration agreements could have been avoided if the parties had used the litigation clause in the examples cited above. The disputed clause would have avoided this dispute: the arbitration clauses recommended by the disputed clause explicitly present the seat of arbitration and the right of arbitration. Another interesting Chinese case concerns the verdict of the Intermediate People`s Court of Shijiazhuang.

[5] Here, the court had to consider two different arbitration clauses, in a clause it said: “… Both parties agree to an arbitration procedure in accordance with the International Chamber of Commerce [Rules] and takes place in China […] ». the other clause provided that any dispute “…… is definitively settled by arbitration in China, in accordance with the rules of the International Chamber of Commerce whose sentence binds the parties. The Tribunal found that the parties to the two arbitration agreements were referring to the 1998 CCI rules.