Asymmetrical Arbitration Clauses

Asymmetrical arbitration clauses are those which afford more rights to one party than to another. For example, whilst a typical symmetrical arbitration agreement would provide that all parties must submit a dispute to arbitration, an asymmetrical clause would give one party the option of choosing between arbitration and litigation whilst binding the others to its decision.

According to Born, "[t]he weight of authority [...] upholds asymmetrical arbitration clauses."¹ However, as is often the case in international arbitration, the enforceability of such clauses depends on their specific wording and their lex arbitri. This note considers how several jurisdictions have approached the enforceability of asymmetrical arbitration clauses.