A Comparative Analysis of the Enforcement of Multi-tier Dispute Resolution Clauses

Author: Jeffrey, Chein-Yu Long*

I. Introduction

Multi-tier dispute resolution clauses (“MDRCs”) have become increasingly common in commercial contracts, particularly in complex international transactions. These clauses typically require parties to engage in sequential dispute resolution processes—often beginning with negotiation, proceeding to mediation, and culminating in arbitration or litigation—before a definitive resolution can be reached. While designed to encourage efficient dispute resolution and preserve business relationships, these clauses have generated significant jurisprudential complexity regarding their enforceability.

This article examines how courts and tribunals across major jurisdictions approach the enforcement of MDRCs, with particular focus on three critical questions. First, whether non-compliance with an MDRC affects jurisdiction or merely admissibility, and the practical consequences of this distinction. Second, what considerations courts and tribunals apply when determining whether such clauses are mandatory or merely directory. Third, when does the futility exception apply, i.e., when do courts excuse compliance due to procedural pointlessness or futility.

Through comparative analysis of key cases from England, Singapore, Hong Kong, Germany, Switzerland, and France, this article seeks to identify emerging global trends and provide guidance for practitioners drafting these clauses.

II. The Theoretical Framework: Jurisdiction versus Admissibility

A. Conceptual Distinction

Before examining case law, it is essential to understand the fundamental distinction between jurisdiction and admissibility. Though sometimes conflated, these concepts have distinct implications for the enforcement of MDRCs.

Jurisdiction concerns a tribunal’s authority to hear and decide a dispute. It asks whether the tribunal has the power to adjudicate the matter at all. Jurisdictional challenges typically relate to the existence, validity, or scope of the arbitration agreement itself.

Admissibility, by contrast, presupposes jurisdiction but questions whether a claim is appropriate for adjudication at a particular time or in a particular form. Admissibility objections recognize the tribunal’s authority but contend that certain prerequisites to exercising that authority have not been satisfied.

This theoretical distinction carries significant practical consequences in the context of MDRCs. If non-compliance with pre-arbitration steps is deemed jurisdictional, courts may set aside awards under Article V(1)(c) of the New York Convention or equivalent national provisions. Conversely, if considered an admissibility issue, courts typically defer to tribunals’ determinations, substantially limiting judicial intervention.

B. The Prevailing Approach: Admissibility Over Jurisdiction

Recent jurisprudence across multiple jurisdictions increasingly characterizes non-compliance with pre-arbitration steps as affecting admissibility rather than jurisdiction. This trend aligns with arbitration’s fundamental goals of efficiency and finality.

The English Court of Appeal’s decision in Sierra Leone v. SL Mining epitomizes this approach. In this case, Sierra Leone challenged the tribunal’s jurisdiction under Section 67 of the English Arbitration Act, 1996, arguing that SL Mining had commenced arbitration prematurely by failing to observe a three-month cooling-off period. The court rejected this jurisdictional challenge, holding that the issue is one of admissibility, not jurisdiction and that non-compliance with pre-arbitration steps does not affect tribunal’s substantive jurisdiction.[2]

The c emphasized that the cooling-off provision related to .[3] Sir Michael Burton’s memorable observation that “there was not a cat’s chance in hell of an amicable settlement” reflected the court’s practical approach to enforcing such clauses.[4]

This admissibility-oriented approach has gained traction globally. In C v. D, Hong Kong’s Court of Appeal similarly distinguished between jurisdictional issues and admissibility questions, finding that challenges to compliance with a pre-arbitration negotiation clause concerned admissibility rather than jurisdiction. The court emphasized that tribunal decisions on admissibility are final and not subject to court review under Article 34 of the UNCITRAL Model Law.[5]

Germany’s Federal Supreme Court (Bundesgerichtshof) adopted similar reasoning in determining that non-compliance with escalation clauses affects admissibility rather than jurisdiction. The German court emphasized that even if pre-arbitration steps were not fulfilled, this would not invalidate the arbitration agreement itself or deprive the tribunal of its authority to determine the dispute.[6]

C. Practical Implications of the Jurisdiction/Admissibility Distinction

The categorization of MDRC compliance as a matter of admissibility rather than jurisdiction carries several significant practical implications:

1. Limited Judicial Review: Courts generally reject challenges to tribunals’ decisions on admissibility, preserving arbitral autonomy and finality.
2. Remedial Flexibility: Tribunals retain broader discretion to fashion appropriate remedies for non-compliance, such as temporary stays or dismissals without prejudice, rather than declining jurisdiction entirely.
3. Waiver Potential: Respondents must raise admissibility objections promptly before the tribunal, as delays may constitute waiver.
4. Bifurcation Considerations: Admissibility questions are less likely to justify bifurcated proceedings than true jurisdictional issues.
5. Enforcement Implications: Awards addressing admissibility are less vulnerable to challenges in enforcement proceedings under the New York Convention.

The impact of this distinction is illustrated in Sierra Leone v. SL Mining discussed above where Sierra Leone’s jurisdictional challenge failed both procedurally and substantively. Had Sierra Leone raised its objection solely before the tribunal as an admissibility issue, it may have secured a temporary stay of proceedings.

The Hong Kong Court of Appeal in C v. D explicitly acknowledged these practical consequences, noting that recognizing the distinction between admissibility and jurisdiction would “be in line with the general trend of minimizing the permissible scope of judicial interference in arbitral procedures and awards[7] This approach enhances arbitral efficiency by limiting “satellite litigation” over procedural compliance.

III. Enforceability Criteria: Mandatory versus Directory Clauses

A. The Evolution of Enforceability Standards

The enforceability of MDRCs has evolved significantly over the past two decades. Early English decisions like Walford v. Miles treated as inherently unenforceable due to a lack of certainty.[8] However, contemporary jurisprudence has moved toward enforcing well-drafted MDRCs, particularly when they incorporate structured processes.

The turning point in English law came with Cable & Wireless v. IBM United Kingdom, where Justice Colman held that a mediation clause referencing the Centre for Effective Dispute Resolution (CEDR) Model Procedure was sufficiently certain to be enforced. The court distinguished between vague and structured mediation procedures, finding the latter enforceable due to their procedural clarity.[9]

This approach was further developed in Emirates Trading Agency v. Prime Mineral Exports Private, where Justice Teare enforced the multi-tier dispute resolution clause and concluded that “the discussions may last for a period of 4 weeks but if no solution is achieved a party may commence arbitration. Or the discussions may last for less than 4 weeks in which case a party must wait for a period of 4 continuous weeks to elapse before he may commence arbitration.” Departing from earlier jurisprudence, the court held that such clauses were neither incomplete nor uncertain when they specified a clear timeframe and objective.[10]

B. Criteria for Enforceability Across Jurisdictions

Courts and tribunals across jurisdictions have developed various tests to determine whether MDRCs are enforceable as mandatory conditions precedent. Despite jurisdictional variations, several common factors have emerged:

1. Procedural Specificity

Courts consistently emphasize the importance of procedural clarity. In Medissimo v. Logica, France’s Cour de cassation declined to enforce an amicable negotiation clause due to its lack of specific implementation conditions. The court held that [11]

This approach contrasts with the decision in Cable & Wireless v. IBM U.K., where the incorporation of the CEDR Model Procedure provided sufficient procedural specificity to render the clause enforceable. Justice Colman emphasized that [12]

A 2016 decision from the Swiss Federal Supreme Court further illustrates this principle. The court enforced a conciliation clause that referenced the ICC ADR Rules, finding that such incorporation provided the necessary procedural framework. The court specifically noted that respondent’s failure to engage in the “discussion required” by Article 5(1) ICC ADR Rules constituted non-compliance with a mandatory precondition.[13]

2. Clear Mandatory Language

Courts examine whether the clause’s language clearly indicates its mandatory nature. Words like “shall,” “must,” or explicit references to “condition precedent” strengthen enforceability.

In Ling Kong Henry v. Tanglin Club, Singapore’s High Court enforced Rule 45B of the club’s constitution requiring conciliation and mediation before arbitration, finding that the language created a mandatory obligation. Justice Thean emphasized that “the obligation to arbitrate … is only invoked when the preconditions to the commencement of arbitration have been fulfilled” demonstrating the clause’s mandatory nature.[14]

Conversely, in Kajima v. Children’s Ark, the English Court of Appeal declined to enforce a “Dispute Resolution Procedure” due in part to unclear language regarding its mandatory status. The court found that the Liaison Committee was a “fundamentally flawed body which could neither resolve a dispute involving Kajima ‘amicably’, nor could fairly provide a decision binding on Kajima in any event.”[15]

3. Time Limitations

Courts look favorably upon clauses that specify clear timeframes for pre-arbitration steps. In Emirates Trading v. Prime Mineral Exports, Justice Teare emphasized that the four-week period for “friendly discussions” provided sufficient certainty to render the clause enforceable.[16]

Similarly, in Republic of Sierra Leone v. SL Mining, the definitive three-month cooling-off period was acknowledged as a valid timeframe, though ultimately the court found this requirement had been waived through the parties’ conduct.[17]

4. Objective Criteria for Fulfillment

Enforceable clauses typically provide objective criteria to determine when pre-arbitration obligations have been satisfied. Without such criteria, courts may find clauses too uncertain to enforce.

In the Swiss Federal Supreme Court case discussed above, the reference to the ICC ADR Rules provided objective standards for conciliation. The court specifically found that the respondent’s premature termination of conciliation without a discussion under Article 5(1) of the ICC ADR Rules constituted non-compliance with an objective procedural requirement.[18]

5. Dispute Resolution Body Structure

Courts examine whether any dispute resolution body designated by the clause is properly constituted and capable of fulfilling its intended function.

.[19]

C. Case-by-Case Analysis Across Jurisdictions

1. United Kingdom

English courts have adopted a flexible approach to enforcing MDRCs, balancing contractual autonomy with procedural practicality.

In Emirates Trading v. Prime Mineral Exports, Justice Teare enforced a clause requiring four weeks of “friendly discussions,” finding it sufficiently certain and supported by public policy considerations favoring dispute resolution. Importantly, the court determined that actual discussions had taken place over several months, satisfying the clause’s requirements.[20]

However, in Kajima v. Children’s Ark, the Court of Appeal declined to enforce a fundamentally flawed dispute resolution procedure. The court emphasized that even if the clause were enforceable, a stay rather than striking out would be the appropriate remedy, reflecting English courts’ reluctance to bar claims entirely for procedural non-compliance.[21]

Most recently, in Lancashire Schools v. Lendlease Construction, the Technology and Construction Court acknowledged that a pre-arbitration adjudication requirement was valid but declined to enforce it due to case management considerations in a multi-party dispute.[22] This decision illustrates English courts’ willingness to override contractual mechanisms when strict enforcement would undermine efficient dispute resolution.

2. Singapore

Singapore courts have consistently enforced well-drafted MDRCs, as demonstrated in Ling Kong Henry v. Tanglin Club. Justice Thean enforced Rule 45B’s multi-tier process (conciliation → mediation → arbitration), finding that it constituted a valid arbitration agreement encompassing pre-arbitral steps.[23]

The noted that Rule 45B provided clear steps and consequences, satisfying contractual certainty requirements.[24] The decision reinforced Singapore’s arbitration-friendly approach and established that multi-tier clauses are valid arbitration agreements under the Arbitration Act.

3. Hong Kong

Hong Kong’s courts have adopted a non-interventionist approach to MDRCs. In C v. D, the Court of Appeal emphasized that non-compliance with pre-arbitration steps (CEO negotiations) affected admissibility, not jurisdiction. The court held that tribunals are best placed to determine compliance with procedural preconditions, with courts deferring to their findings.[25]

This approach aligns Hong Kong with other major arbitration centers in limiting judicial interference with tribunal decisions on procedural compliance.

4. Germany

The German Federal Supreme Court (Bundesgerichtshof) has categorized non-compliance with escalation clauses as affecting admissibility rather than jurisdiction. In the 2016 case discussed above, the court emphasized that escalation clauses “do not suspend arbitral jurisdiction” but may delay the merits phase if raised properly.

This decision reinforced Germany’s arbitration-friendly reputation by limiting challenges to tribunal jurisdiction based on procedural non-compliance.

5. Switzerland

The Swiss Federal Supreme Court has taken a nuanced approach to MDRCs, emphasizing strict compliance while preserving arbitral efficiency. In the 2016 case previously discussed, the court found that non-compliance with a conciliation clause warranted a stay rather than dismissal of arbitration proceedings.[27]

However, by ordering a stay rather than dismissal, the court adopted a remedy that preserves arbitral efficiency while enforcing contractual obligations.[28]

6. France

French courts have been relatively restrictive in enforcing MDRCs lacking procedural specificity. In Medissimo v. Logica, the Cour de cassation declined to enforce a general clause requiring “amicable resolution” without detailed implementation procedures.[29]

The court held that vague negotiation clauses do not constitute a mandatory precondition to litigation, emphasizing that the mere agreement to negotiate does not suspend the parties’ right to judicial recourse.[30] This approach differs somewhat from the more enforcement-oriented approach in England post-Emirates Trading.

D. Synthesis: A Convergent Approach?

Despite jurisdictional variations, several common principles emerge from this comparative analysis:

1. Procedural Specificity: Courts across jurisdictions increasingly enforce MDRCs that provide clear procedural frameworks, particularly when they reference institutional rules.
2. Admissibility Characterization: There is a growing consensus that non-compliance with pre-arbitration steps affects admissibility rather than jurisdiction, limiting judicial interference.
3. Proportionate Remedies: Courts favor stays over dismissals when enforcing MDRCs, reflecting a balance between contractual enforcement and efficient dispute resolution.
4. Futility Exception: Most jurisdictions recognize that pre-arbitration steps may be excused when demonstrably futile, as in Sierra Leone v. SL Mining.
5. Multi-Party Complexity: Courts increasingly consider practical challenges in multi-party disputes, as in Lancashire Schools v. Lendlease.

While differences remain in the stringency with which courts enforce MDRCs, the trend appears to be toward enforcing clearly drafted clauses while preserving tribunals’ authority to manage procedural compliance.

IV. The Futility Exception: Circumventing Pre-Arbitration Steps

A recurring challenge in enforcing multi-tier clauses is determining whether compliance with pre-arbitration steps can be excused on grounds of futility. Courts and tribunals increasingly recognize that rigid adherence to procedural prerequisites may waste resources where resolution through negotiation or mediation is demonstrably impossible. However, the threshold for proving futility remains high, and its application varies across jurisdictions.

A. Legal Basis and Standards

The futility exception derives from the principle that parties should not be compelled to engage in “empty formalities” when compliance would serve no practical purpose. The International Law Commission (ILC) Draft Articles on Diplomatic Protection (2006) codified this exception, requiring claimants to show that “there are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress.”[31]

B. Jurisdictional Approaches

1. England & Wales
   English courts balance contractual compliance with practicality. .[32] However, in Emirates Trading Agency v. Prime Mineral Exports, Justice Teare rejected futility arguments, ruling that parties must engage in “friendly discussions” even if success seems unlikely.[33]
2. United States
   U.S. courts emphasize procedural rigor. The Third Circuit Court in Chassen v. Fidelity National Financial permitted arbitration despite non-compliance with preconditions, but stressed that futility requires a showing that compliance would have been “[34]
3. Singapore
   Singapore’s High Court in International Research Corp v. Lufthansa Systems rejected futility defenses outright, ruling that only strict compliance confers jurisdiction.[35] This contrasts with the U.K.’s flexible approach.
4. Practical Implications

• High Evidentiary Burden: Parties must provide concrete evidence of futility (e.g., prior breakdowns in negotiations, refusal to participate, or systemic legal barriers).
• Timely Objections: Tribunals may deem futility defenses waived if not raised early.
• Strategic Risks: Overreliance on futility arguments risks adverse costs orders or findings of bad faith.

V. Practical Implications for Practitioners

A. Drafting Enforceable Multi-tier Dispute Resolution Clauses

Based on the jurisprudence analyzed above, practitioners should consider the following guidelines when drafting MDRCs:

1. Clear Mandatory Language

Use explicit language indicating that pre-arbitration steps are mandatory conditions precedent to arbitration or litigation. Prefer terms such as “shall,” “must,” and “condition precedent” over ambiguous language like “may” or “should.”

Example: “As a condition precedent to initiating arbitration, the parties must first engage in mediation in accordance with the [mediation rule].”

2. Detailed Procedural Framework

Specify a clear, step-by-step process for each pre-arbitration phase. Where possible, incorporate established institutional rules to provide procedural certainty.

Example: “Any dispute shall first be referred to negotiation between the parties’ designated representatives, who shall meet within 14 days of a written notice of dispute. If unresolved within 30 days of the notice, the dispute shall be referred to mediation under the ICC Mediation Rules.”

3. Definite Timeframes

Include specific timeframes for each step of the process, including:

• Time for initiating negotiations/mediation after a dispute arises
• Duration of each pre-arbitration phase
• Cooling-off periods between steps

Example: “The parties shall engage in good faith negotiations for a period of 60 days from the date of notice. If the dispute remains unresolved, either party may initiate mediation, which shall conclude within 90 days of referral.”

4. Exceptions for Urgent Relief

Include carve-outs allowing parties to seek interim or conservatory measures from courts or emergency arbitrators without completing pre-arbitration steps.

Example: “Notwithstanding the foregoing, nothing in this clause shall prevent either party from seeking urgent interim relief from any court of competent jurisdiction or emergency arbitrator.”

5. Appointment Mechanisms

Specify clear mechanisms for appointing mediators, experts, or other neutral parties involved in pre-arbitration processes.

Example: “The mediator shall be appointed by agreement of the parties within 14 days of the initiation of mediation, failing which the mediator shall be appointed by the ICC International Centre for ADR.”

6. Confidentiality Provisions

Include confidentiality requirements for negotiations and mediation, including the inadmissibility of settlement discussions in subsequent proceedings.

Example: “All communications, negotiations, and mediation discussions shall remain confidential and shall not be admissible in any subsequent litigation or arbitration except as permitted by applicable law.”

7. Costs Allocation

Specify how costs of pre-arbitration processes will be allocated between parties.

Example: “The parties shall bear their own costs of the negotiation and mediation, and shall share equally the costs of the mediator and any venue.”

8. Clear Transition Mechanisms

Articulate precisely how and when parties may proceed from one dispute resolution tier to the next.

Example: “If the dispute remains unresolved 30 days after the appointment of the mediator, or such further period as the parties may agree in writing, either party may initiate arbitration in accordance with clause X.”

B. Strategic Considerations in Enforcement

When faced with a counterparty who has bypassed pre-arbitration steps, consider the following strategic approaches:

1. Early Jurisdictional/Admissibility Objections

Raise objections regarding non-compliance with MDRCs at the earliest opportunity to avoid waiver. In arbitration, this typically means raising the issue in the Answer to the Request for Arbitration.

2. Remedy Selection

Consider requesting a stay rather than dismissal of proceedings, as courts and tribunals are more likely to grant this remedy. A stay preserves the claim while enforcing the MDRC’s requirements.

3. Documenting Compliance Efforts

Maintain detailed records of all attempts to comply with pre-arbitration steps, including:

• Written notices initiating negotiations
• Meeting minutes
• Correspondence regarding mediation arrangements
• Evidence of good faith participation

4. Cost Considerations

Evaluate whether enforcing pre-arbitration steps is cost-effective, particularly where proceedings have advanced substantially, or the clause lacks specificity.

5. Multi-Party Complexities

In multi-party disputes, consider whether strict enforcement of bilateral MDRCs is practical. As Lancashire Schools v. Lendlease demonstrates, courts may decline to enforce MDRCs where doing so would create procedural inefficiencies in complex cases.[36]

V. Conclusion: Convergence and Divergence in the Enforcement of MDRCs

This comparative analysis reveals a nuanced global landscape regarding the enforcement of MDRC clauses. While jurisdictional differences persist, several convergent trends are emerging.

First, there is growing consensus that non-compliance with pre-arbitration steps affects admissibility rather than jurisdiction. This approach enhances arbitral efficiency by limiting judicial interference while preserving tribunals’ authority to manage procedural compliance.

Second, courts across jurisdictions increasingly enforce MDRCs that provide clear procedural frameworks, particularly when they incorporate institutional rules or specify detailed processes. The evolution from Walford v. Miles to Cable & Wireless and Emirates Trading in English law exemplifies this trend toward enforceability.

Third, most jurisdictions prefer stays over dismissals when enforcing MDRCs, reflecting a balanced approach that upholds contractual obligations while avoiding disproportionate procedural consequences.

Despite these convergences, important divergences remain. French courts apply stricter requirements for procedural specificity, as demonstrated in Medissimo v. Logica. German and Swiss courts focus more explicitly on good faith compliance with pre-arbitration steps, while English courts increasingly consider practical factors like multi-party complexity.

For practitioners, these trends underscore the importance of drafting MDRCs with precision, considering jurisdiction-specific requirements, and anticipating potential enforcement challenges. Well-drafted clauses should specify clear procedures, definite timeframes, and explicit consequences for non-compliance.

As global commerce increasingly relies on complex, long-term contracts with sophisticated dispute resolution mechanisms, the jurisprudence surrounding MDRCs will continue to evolve. While perfect harmonization across jurisdictions remains elusive, the trend toward enforcing clearly drafted clauses while preserving efficient dispute resolution provides a stable foundation for international commercial practice.

[1] George A. Bermann, The “Gateway” Problem in International Commercial Arbitration, 37 Yale J. Int’l L. 1, 46 (2012).

[2] Republic of Sierra Leone v. SL Mining Limited [2021] EWHC 286 (Comm), ¶¶ 4, 38.

[3] Id. ¶ 21.

[4] Id. ¶ 36.

[5] Prakritee Yonzon, C v D: Hong Kong in Step with the Admissibility Versus Jurisdiction Debate, Kluwer Arbitration Blog (Oct. 28, 2022), https://legalblogs.wolterskluwer.com/arbitration-blog/c-v-d-hong-kong-in-step-with-the-admissibility-versus-jurisdiction-debate/; C v. D [2022] HKCA 729, ¶ 39.

[6] Bundesgerichtshof [BGH] [Federal Court of Justice] Aug. 9, 2016, Case I ZB 1/15, (Ger.) https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=75735&pos=0&anz=1.

[7] Prakritee, supra note 5; C v. D, ¶ 39.

[8] Walford and others v. Miles and another [1992] 2 A.C. 128.

[9] Cable & Wireless Plc v. IBM United Kingdom Limited [2002] APP.L.R. 10/11, ¶¶ 23-31.

[10] Emirates Trading Agency LLC v. Prime Mineral Exports Private Limited [2014] EWHC 2104 (Comm), ¶¶ 26, 47.

[11] Gregory Travaini, Multi-tiered dispute resolution clauses, a friendly Miranda warning, Kluwer Arbitration Blog (Sept. 30, 2014), https://legalblogs.wolterskluwer.com/arbitration-blog/multi-tiered-dispute-resolution-clauses-a-friendly-miranda-warning/#footnote2_2Nlmp2dZAijKgG5uJMR7uwegUuJLOb6C0-jzLSU1I_nlSqQPVPjTcQ; Cour de cassation [Cass.] [supreme court for judicial matters] com., Apr. 29, 2014, Bull. civ. IV, No. 76 (Fr.).

[12] Cable & Wireless, ¶¶ 23-31.

[13] Tribunal fédérale [TF] Mar. 16, 2016, 4A_628/2015, at 13, 20 (Switz.).

[14] Ling Kong Henry v. Tanglin Club [2018] SGHC 153, ¶ 19.

[15] Kajima Construction Europe (U.K.) Limited & Anor v. Children’s Ark Partnership Limited [2023] EWCA Civ 292,
¶ 53 [hereinafter Kajima v. Children’s Ark].

[16] Emirates Trading, ¶¶ 26, 47.

[17] Sierra Leone, ¶ 37.

[18] Tribunal fédérale [TF] Mar. 16, 2016, 4A_628/2015, at 13, 20 (Switz.).

[19] Kajima v. Children’s Ark, ¶¶ 12, 53.

[20] Emirates Trading, ¶¶ 65-72.

[21] Kajima v. Children’s Ark, ¶¶ 85-87.

[22] Lancashire Schools SPC Phase 2 Limited v. Lendlease Construction (Europe) Limited & Ors [2024] EWHC 37 (TCC), ¶¶ 89-97.

[23] Ling Kong Henry, ¶¶ 16-26.

[24] Id.

[25] C v. D, ¶¶ 30, 63.

[26] Bundesgerichtshof [BGH] [Federal Court of Justice] Aug. 9, 2016, Case I ZB 1/15, (Ger.) https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=75735&pos=0&anz=1.

[27] Tribunal fédérale [TF] Mar. 16, 2016, 4A_628/2015, at 19-20 (Switz.).

[28] Id.

[29] Travaini, supra note 12; Cour de cassation [Cass.] [supreme court for judicial matters] com., Apr. 29, 2014, Bull. civ. IV, No. 76 (Fr.).

[30] Travaini, supra note 12; Cour de cassation [Cass.] [supreme court for judicial matters] com., Apr. 29, 2014, Bull. civ. IV, No. 76 (Fr.).

[31] Draft articles on Diplomatic Protection, International Law Commission, 2006, Official Records of the General Assembly, 61^st Session, Supplement No. 10 (A/61/10), art. 15(a), https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_8_2006.pdf.a

[32] Sierra Leone, ¶ 36.

[33] Emirates Trading, ¶¶ 65-72.

[34] Arthur Chassen, at al v. Fidelity National Financial In, et al, No. 15-2814 (3d Cir. 2017).

[35] International Research Corp PLC v. Lufthansa Systems Asia Pacific Pte Limited and another [2013] SGCA 55,
¶ 63.

[36] Lancashire Schools, ¶¶ 89-97.