Split Arbitration Clauses: An International Overview – Vol. 30 No. 4

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Authors: Venna Cheng,* Rosalyn Han,** Rachael O’Grady, Sarah Reynolds†† and Patricia Ugalde Revilla˚

Published: October 2020

Hong Kong
United States
New York
Dispute Resolution and Litigation
Banking and Finance Disputes
Specialized Arbitration
Formal Requirements
Practice and Procedure
Existence and Validity of Agreement to Arbitrate
Choice of Forum/Place of Proceedings
Judicial Assistance in Procedural Matters
New York Convention
Applicable Law

Description: “Split” or “hybrid” arbitration clauses enable one or more of the parties to an agreement to elect to address disputes using previously agreed dispute resolution mechanisms. For example, a typical split clause may permit the parties to choose to submit disputes to arbitration or to the courts of a specified jurisdiction. Parties’ preferences for dispute resolution mechanisms are highly fact-specific and therefore the ability to choose between different regimes in different circumstances is invaluable. Jurisdictions have taken a variety of approaches to the validity of split arbitration clauses—jurisdictions including England and Singapore have broadly accepted such clauses, whilst others, including Russia and France, have been less accommodating. This uneven international landscape creates practical problems when using split arbitration clauses, particularly relating to the enforcement of awards. As such, before relying on any split arbitration clause, parties must give careful consideration to the chosen governing law and seat of the arbitration as well as to the laws of the jurisdictions in which any counterparties have assets.

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*Venna Cheng is a partner in Mayer Brown’s Construction Group in Hong Kong. She is also an accredited mediator in Hong Kong, was named a WWL Future Leader in Construction and an AWBLA Rising Star in Litigation.
**Rosalyn Han is a counsel of Mayer Brown’s Beijing Representative Office. She is also a Chartered Surveyor, a Chartered Construction Manager, and an International Building and Engineering Contracts Accredited Professional. She was named an ALB China Rising Lawyer and a Legal 500 Next Generation Lawyer in Real Estate and Construction.
†Rachael O’Grady is a senior associate in the International Arbitration practice in Mayer Brown’s London office. She was named a Legal 500 Rising Star in International Arbitration and was included in Legal 500’s inaugural International Arbitration Powerlist. She also has been recognised by WWL, both as a Future Leader and as a Leading Individual in the field of international arbitration.
††Sarah Reynolds is a partner in Mayer Brown’s International Arbitration practice, based in the Chicago and Palo Alto offices. She is also a Fellow of the Chartered Institute of Arbitrators and a Center for Conflict Resolution trained mediator.
˚Patricia Ugalde Revilla is an associate in the International Arbitration practice in Mayer Brown’s Paris office. She has been named as a WWL Arbitration Future Leader.