Exercising An Option To Arbitrate: A Matter Of Content Over Form

In Aiteo Eastern E&P Company Limited v Shell Western Supply and Trading Limited¹ the High Court of England and Wales considered what a party with an option to refer a dispute to arbitration must do to successfully exercise that option. It concluded that all that was required was an unequivocal statement requiring the other party to arbitrate an identified dispute. In terms of how that statement was to be delivered, the judge clarified that "it is the message which matters, not the medium". In this case, the unequivocal statement was found to have been made in a notice of appeal challenging a Nigerian court's jurisdiction to hear the dispute.

Background

The claimant ('Aiteo') and the defendant ('SWST') were parties to a facility agreement concluded in connection with the former's acquisition of interests in certain Nigerian oilfields. The agreement contained an asymmetric arbitration clause providing an option for SWST to refer a dispute to arbitration as