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transnational law transnational law (lex mercatoria or international business law) and "Arbitration agreement and substantive claim before court" 2016-03-01 13:58:16 https://www.trans-lex.org/img/logo_ball.png
Principle

No. XIII.1.3 - Arbitration agreement and substantive claim before court

(a) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(b) Where an action referred to in paragraph (a) of this Principle has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.

Commentary
Subsection (b) serves to avoid delays in the arbitration but is not mandatory ("...may..."). If the arbitral tribunal has serious doubts as to its jurisdiction (i.e. as to the validity of the arbitration agreement), it can always suspend the proceedings and await the decision of the court before proceeding with the arbitration.

Please cite as: "Commentary to Trans-Lex Principle , "
References
Court Decisions
International Legislation
Model Laws
National Legislation
Contract Clauses
1. Waiving of Right to resolve Dispute throughout a Court
Employment Contract
Remedy
Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any dispute between me and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither I nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any lawful company policy and the arbitrator shall not order or require the company to adopt a policy not otherwise required by law. Nothing in this Agreement or in this provision is intended to waive the provisional relief remedies available under the rules.
Administrative Relief
I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state or federal administrative body. This Agreement does, however, preclude me from pursuing court action regarding any such claim.
Remedy
Except as provided by the rules and this agreement, arbitration shall be the sole, exclusive and final remedy for any dispute between the Company and me. Accordingly, except as provided for by the rules and this agreement, neither the Company nor I will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the company to adopt a policy not otherwise required by law which the company has not adopted.
Availability of Injunctive Relief
In addition to the right under the rules to petition the court for provisional relief, I agree that any party may also petition the court for injunctive relief where either party alleges or claims a violation of the Employment, Confidential Information, Invention Assignment Agreement between me and the company or any other agreement regarding trade secrets, confidential information, nonsolicitation or labor code §2870. I understand that any breach or threatened breach of such an agreement will cause irreparable injury and that money damages will not provide an adequate remedy therefore, and both parties hereby consent to the issuance of an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorney fees.
Administrative Relief
I understand that this agreement does not prohibit me from pursuing an administrative claim with a local, state or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission or the Workers’ Compensation Board. This agreement does, however, preclude me from pursuing court action regarding any such claim.
Sales & Purchase Contract
Dispute Resolution
(...) Any award of the arbitral tribunal shall be final and binding. The Parties hereby waive any right to appeal from any award to the extent allowed by Applicable Law and agree that UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards is applicable to the enforcement of any award. The parties further agree that arbitration shall be the exclusive method for resolving the disputes and no party to this Agreement shall commence any action or proceeding in any court with respect to any such dispute except as follows: (i) to obtain provisional judicial assistance in aid of arbitration under this section; (ii) to obtain injunctive relief in aid of any of the provisions of this Agreement; or (iii) to enforce an arbitral award made in accordance with this section - (International Contracting: Law and Practice - Larry A. DiMatteo - §9.02 - S. 328).
Arbitration
(...) None of the Parties shall institute a proceeding in any court or administrative agency to resolve a dispute relating to this Agreement, except for a court proceeding to compel arbitration or otherwise enforce this agreement to arbitrate, to enforce an order or award of the Tribunal or petition for the provisional or emergency remedies provided for herein. The Parties waive objection to venue and consent to the nonexclusive personal jurisdiction of the courts of Singapore in any action to enforce this arbitration agreement, any order or award of the Tribunal or the provisional or emergency remedies provided for herein. In any such permitted court action, the Parties agree that delivery of the complaint or petition by international courier, with proof of delivery, shall constitute valid and sufficient service, and they individually and collectively waive any objection to such service.
2012
Arbitration
(...) None of the Parties shall institute a proceeding in any court or administrative agency to resolve a dispute relating to this Agreement, except for a court proceeding to compel arbitration or otherwise enforce this agreement to arbitrate, to enforce an order or award of the Tribunal or petition for the provisional or emergency remedies provided for herein. The Parties waive objection to venue and consent to the nonexclusive personal jurisdiction of the courts of Singapore in any action to enforce this arbitration agreement, any order or award of the Tribunal or the provisional or emergency remedies provided for herein. In any such permitted court action, the Parties agree that delivery of the complaint or petition by international courier, with proof of delivery, shall constitute valid and sufficient service, and they individually and collectively waive any objection to such service.
2012
Arbitration Agreement
Remedy
Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any dispute between Employee and the Company. Accordingly, except as provided for and by the Rules and this Agreement, neither Employee nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy, and the arbitrator shall not order or require the Company to adopt a policy not otherwise required by law which the Company has not adopted.
2003
2. No Right of Appeal & Judicial Review of Award
Sales & Purchase Contract
Arbitration
(...) Nothing herein shall be construed to mean that any decision of the arbitrator is subject to judicial review or appeal, and the Parties hereto hereby waive any and all rights of judicial appeal or review, on any ground whatsoever. Each Party shall bear its own costs and expenses in the event of any dispute hereunder.
2009
3. Allowed Court Actions
Sales & Purchase Contract
Choice of Law; Jurisdiction; Venue and Waiver
(...) The parties further agree that any claim, cause of action or proceeding relating to any arbitration sought, compelled or performed hereunder will be brought and pursued only in the U.S. District Court for the Southern District of New York or, solely in the case that such federal court does not have jurisdiction, in any New York State court sitting in New York City (collectively, the "New York Courts"). X and Y each submit to the exclusive jurisdiction and venue of the New York Courts for such purposes, except that any confirmed arbitration award may be enforced in any court having jurisdiction over a party or, to the extent of any in rem action, any of its assets. The parties further irrevocably waive any objection to the laying of the venue of any such proceeding in the New York Courts, any claim that any such proceeding has been brought in an inconvenient or inappropriate forum and any right to a jury trial with regard to any such proceeding.
2009
Joint Venture
Dispute Resolution
Should the Parties not agree upon the settlement of any dispute by binding arbitration, then any court of competent jurisdiction over the matter shall be utilized.
2005
Dispute Resolution
(...) Either Party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, neither Member may commence a civil action with respect to a Dispute until after the completion of the initial mediation session, or 45 days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action, if the Parties so desire. The provisions of this Section may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys' fees, to be paid by the Party against whom enforcement is ordered.
2005
Dispute Resolution
(...) Either Party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, neither Member may commence a civil action with respect to a Dispute until after the completion of the initial mediation session, or [***] after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action, if the Parties so desire. The provisions of this Section may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys' fees, to be paid by the Party against whom enforcement is ordered.
2007
Trust Agreement
Resolution of Disputes

Nothing in this Section X shall preclude either the Majority Sellers or the Buyer Parent from seeking immediate recourse to a court of competent jurisdiction to: (i) enforce the terms of, or an arbitration award under this Section X; (ii) seek a temporary restraining order, preliminary injunction or other equitable relief (including specific performance), where such relief is necessary to protect its interests, or (iii) to grant recovery of specific property. All matters relating to arbitration shall be strictly confidential. 


2007
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