Five Years Later: Update on Multi-Tier Dispute Resolution Clauses as Jurisdictional Conditions Precedent to Arbitration
Multi-tier dispute resolution clauses state that when a dispute arises, parties must undertake certain steps prior to commencing arbitration, in an attempt to amicably settle the dispute. In the energy industry, such multi-tier dispute resolution clauses have become commonplace, particularly in complex construction contracts, joint venture agreements and other contracts where long-term relationships are created and continuous cooperation is contemplated.
While there are a number of benefits to such clauses, there are also drawbacks. Moreover, some uncertainty exists as to whether such clauses are binding, whether they constitute jurisdictional conditions precedent to the commencement of arbitrations, and what the consequences of a party’s failure to comply are. Indeed, there remain differing opinions among national courts with respect to the effects of non-compliance on an arbitral tribunal’s jurisdiction, although there has been a promising trend toward uniformity in recent years.
This chapter was originally published in 2017, in an earlier edition of the Guide to Energy Arbitrations, to explore the benefits and drawbacks of multi-tier clauses, identify how various jurisdictions around the world have addressed whether they constitute jurisdictional conditions precedent to the commencement of arbitration, outline considerations for transactional lawyers and parties incorporating multi-tier clauses into their agreements, and provide recommendations for how arbitration practitioners should deal with such clauses when they encounter them. Since then, there have been major developments in this area in a number of jurisdictions, necessitating an update to this chapter.
Function, benefits and drawbacks of multi-tier dispute resolution clauses
In its simplest form, a multi-tier clause will require parties to engage in a single step prior to commencing arbitration, such as negotiations among party representatives for a defined period. In its more complex forms, a clause may require parties to undertake multiple steps prior to commencing arbitration, such as negotiation among lower-level representatives, followed by negotiation by higher-level representatives, followed by formal mediation or conciliation proceedings, all for defined periods. By including a multi-tier clause in a contract, the parties signal that efforts should be made to settle a dispute prior to arbitration, and that arbitration will only be sought as a last resort.
There are a number of benefits to multi-tier dispute resolution clauses. For example:
- they provide the parties with a contractually mandated opportunity to resolve disagreements relatively inexpensively without incurring the costs and delays associated with actual arbitration proceedings;
- they provide a contractual ‘cooling-off period’ during which the parties can reassess and evaluate whether to strike a compromise outside of the antagonistic and contentious arbitral context, which may yield more fruitful and beneficial settlement discussions;
- they can be particularly useful in circumstances where parties have a long-term commercial relationship that they wish to preserve; and
- multi-tier dispute resolution clauses may enable the parties to narrow the issues to be arbitrated, by settling those issues on which they find common ground in advance of arbitration, resulting in a more efficient and cost-effective arbitration.
Multi-tier clauses may also give rise to several negative effects that should be given careful consideration. Depending on the circumstances, such clauses could give rise to the following:
- pre-arbitration negotiations where the parties are entrenched in their positions and the possibility of reaching an agreement is futile can lead to an unnecessary waste of time and expense;
- the obligation to conduct pre-arbitration negotiations can impair a party’s ability to secure interim measures in time-sensitive disputes by postponing the commencement of an arbitration;
- multi-tier clauses can lead to objections to a tribunal’s jurisdiction, which may result in termination of the arbitration or the final award being set aside or refused recognition and enforcement;
- multi-tier clauses can lead to objections regarding the admissibility of claims that were not specifically discussed and negotiated, which may result in those claims being dismissed as inadmissible;
- in particularly complex disputes, where additional claims are discovered or developed after an arbitration has commenced, multi-tier clauses can lead to objections on the ground that they were not expressly negotiated during pre-arbitration negotiations;
- multi-tier clauses can lead to objections to counterclaims made in an arbitration that were not specifically discussed and negotiated at pre-arbitration negotiations on the basis that such counterclaims were not first subject to settlement discussions; and
- where a limitation period is set to expire before the contractually mandated negotiation period, a claim can be barred.
In view of the foregoing, while there are benefits to multi-tier dispute resolution clauses, they are not without significant risks, and could impose significant challenges depending on the nature of the claims in dispute as well as procedural concerns.
Historically, a number of national courts and arbitral tribunals have found that the pre-arbitral steps in a multi-tier dispute resolution clause constitute jurisdictional conditions precedent to the commencement of arbitration. In other words, they have ruled that where a party fails to carry out the contractually mandated pre-arbitral steps, a tribunal does not have jurisdiction to hear a dispute. Accordingly, a failure to comply with the pre-arbitral steps in a multi-tier clause carries with it significant potential risks. If a jurisdictional objection is addressed by a tribunal early in the arbitral proceedings, the arbitration might be dismissed for lack of jurisdiction. If, on the other hand, a jurisdictional objection is addressed by a tribunal in the final award, a national court could set aside or otherwise refuse to enforce it.
The question of whether the pre-arbitral steps in a multi-tier clause constitute jurisdictional conditions precedent to arbitration is answered differently from jurisdiction to jurisdiction, although there has been a clear trend toward harmonisation in the recent years. Generally speaking, most national courts and arbitral tribunals have been reluctant to find that pre-arbitral steps constitute jurisdictional conditions precedent to commencing arbitration, absent clear language to that effect within the multi-tier clause. This view appears to have gathered steam in the recent years across a number of jurisdictions, including the United Kingdom, the United States, Singapore and Hong Kong, with various courts ruling that multi-tier clauses are relevant only to the admissibility of the claims and not to the jurisdiction of the tribunal. However, there are still some jurisdictions that appear to be inclined to find such steps to constitute jurisdictional conditions precedent, even in the absence of clear language.
Moreover, even in jurisdictions where the pre-arbitral steps in multi-tier clauses have been found not to constitute jurisdictional conditions precedent to the commencement of an arbitration, courts in those jurisdictions did not necessarily find that failure to comply with such pre-arbitral steps could not result in the dismissal of claims. Rather, they have simply found that failure to comply with pre-arbitral steps did not deprive arbitral tribunals of jurisdiction and have instead ruled that it is for arbitral tribunals – rather than courts – to assess what consequences, if any, should flow from a failure to comply with pre-arbitral steps in multi-tier dispute resolution clauses, including dismissal of those claims on the basis that they are inadmissible. Thus, even in jurisdictions where pre-arbitral steps are not considered to constitute jurisdictional conditions precedent to the commencement of arbitration, failure to comply with such pre-arbitral steps could result in claims being dismissed by tribunals as inadmissible.
In the sections that follow, we will review recent national court decisions and arbitral awards involving multi-tier dispute resolution clauses, including those released since the original publication of this paper in 2017, to assess the degree to which these clauses have been held to constitute jurisdictional conditions precedent to arbitration. This review is not intended to be an exhaustive comparative analysis of how courts and tribunals around the world have addressed this issue, but rather is set out solely for illustrative purposes. Following this review, advice will be provided on how to mitigate some of the potentially resulting uncertainty, in terms of drafting multi-tier arbitration clauses, and initiating arbitration pursuant to such multi-tier clauses.
Recent treatment of multi-tier dispute resolution clauses by national courts
England and Wales
Historically, English courts have been reluctant to find that pre-arbitral steps in multi-tier dispute resolution clauses constitute jurisdictional conditions precedent to arbitration, absent clear language to that effect. These decisions stem primarily from the House of Lord’s decision in Walford v. Miles, in which Lord Ackner held that a bare agreement to negotiate was unenforceable as a mere ‘agreement to agree’.
For example, in Sulamerica CIA Nacional de Seguros v. Enesa Engenharia, the Court of Appeal was presented with a multi-tier clause that required that ‘prior to a reference to arbitration, [the parties] will seek to have the Dispute resolved amicably by mediation’, and that:
If the Dispute has not been resolved to the satisfaction of either party within 90 days of service of the notice initiating mediation, or if either party fails or refuses to participate in the mediation, or if either party serves written notice terminating the mediation under this clause, then either party may refer the Dispute to arbitration.
The issue presented to the Court of Appeal was whether mediation was a binding jurisdictional condition precedent to the commencement of arbitration. The Court held that it was not, as it did not contain clear language to that effect and did not define the obligation to mediate with sufficient certainty. In particular, the Court held that the multi-tier clause ‘did not set out any defined mediation process, nor does it refer to the procedure of a specific mediation provider’. Rather, it ‘contain[ed] merely an undertaking to seek to have the dispute resolved amicably by mediation’ and ‘[n]o provision [was] made for the process by which that [was] to be undertaken’. Accordingly, the court ruled that mediation was not a jurisdictional condition precedent to arbitration.
Similarly, in Tang Chung Wah & Anor v. Grant Thornton International Ltd, the contract at issue contained a multi-tier dispute resolution clause that provided that prior to commencing arbitration, the parties were required to refer disputes to conciliation for one month, after which the parties were required to refer disputes to a panel of three individuals identified in the clause. The clause made clear that until those steps were undertaken ‘no party may commence any arbitration procedures in accordance with this Agreement’.
The claimant in that case commenced an arbitration against the respondent without fulfilling the pre-arbitral steps, and the respondent asked the tribunal to dismiss the claim for lack of jurisdiction. The tribunal found that it had jurisdiction, so the respondent sought to have this determination set aside by the High Court (Chancery Division). Ultimately, the High Court upheld the tribunal’s ruling, and held that the pre-arbitral steps in the multi-tier clause did not constitute binding conditions precedent to the commencement of arbitration, because they did not contain clear language to that effect and did not adequately specify the form in which the pre-arbitral steps should proceed. Specifically, the High Court held that the multi-tier clause did not indicate:
what form the process of conciliation should take (apart from the injunction that it is to be undertaken ‘in amicable fashion’), . . . who is to be involved and what (if anything) they are required to do by way of participation in the process, . . . [or] what the obligation to attempt to resolve the dispute or difference requires the [conciliator] to do.
When read together, Sulamerica and Tang evidence the high threshold that English courts have historically applied when determining whether a multi-tier clause is a jurisdictional condition precedent, as well as the English courts’ hesitation in enforcing pre-arbitration requirements as binding conditions precedent to the commencement of arbitration.
However, in 2014, the English High Court released a decision that appeared to challenge the English courts’ long-standing reluctance in this regard. In particular, in Emirates Trading Agency LLC v. Prime Mineral Exports Private Limited, the contract at issue contained a multi-tier clause that required the parties to negotiate for four weeks prior to commencing arbitration. The claimant commenced an arbitration against the respondent, and the respondent brought an application to the High Court seeking an order that the tribunal lacked jurisdiction on the ground that the parties had allegedly failed to negotiate as required by the multi-tier clause. In the event, and in apparent contradiction to Sulamerica and Tang, the High Court held that negotiation was a ‘condition precedent to the right to refer a claim to arbitration’, but ultimately found that on the facts of that case, the parties had sufficiently negotiated to confer jurisdiction on the tribunal.
The Emirates Trading decision was heavily criticised by international arbitration practitioners and commentators as inconsistent with English law, contrary to English public policy, and at odds with the goals of international arbitration. Moreover, Emirates Trading relied in large measure on an Australian case that is itself generally regarded as an outlier in international arbitration circles.
Ultimately, the decision of the High Court in Emirates Trading was overruled in 2021 by the High Court itself in Republic of Sierra Leone v. SL Mining Ltd. In this case, the Court was faced with a challenge to a Partial Final Award on Jurisdiction in an ICC arbitration pursuant to Section 67 of the English Arbitration Act 1996, where an arbitral tribunal ruled that it had jurisdiction in circumstances where one of the parties had failed to comply with pre-arbitration steps in a multi-step dispute resolution process. In deciding on the challenge, the High Court expressly refused to follow the precedent set in Emirates Trading, noted that this decision has been heavily criticised by leading academic writers and concluded that the weight of the international authorities is ‘plainly overwhelmingly in support of a case that a challenge such as the present [i.e., lack of compliance with pre-arbitral dispute resolution process] does not go to jurisdiction’. The High Court further observed that this line of authority was consistent with recent decisions from other jurisdictions, as well as the guidance of the Chartered Institute of Arbitrators. Having considered all of the above, the High Court ultimately agreed with the following conclusions in the Partial Final Award on Jurisdiction before stating:
I consequently agree with the conclusions of the Arbitrators […] that ‘if reaching the end of the settlement period is to be viewed as a condition precedent at all, therefore, it could therefore only be a matter of procedure, that is, a question of admissibility of the claim, and not a matter of jurisdiction’.
The High Court’s decision in Republic of Sierra Leone thus corrects what now appears to be an aberration from the long-standing reluctance of the English courts to find that pre-arbitral steps in multi-tier clauses constitute jurisdictional conditions precedent to arbitration absent express language to the contrary. However, in so stating, while the High Court in Republic of Sierra Leone did conclude that failure to comply with pre-arbitration steps in a multi-tier dispute resolution clause might not result in the dismissal of claims for lack of jurisdiction, such a failure could still result in the dismissal of claims for lack of admissibility.
In the United States, the prevailing view appears to be that pre-arbitral steps in multi-tier clauses will not constitute jurisdictional conditions precedent to the commencement of arbitration, unless the multi-tier clause at issue expressly includes language to the contrary. For example, in the 2014 decision of BG Group plc v. Republic of Argentina, the United States Supreme Court took the position that a failure to comply with pre-arbitral steps set out in multi-tier clauses do not deprive an arbitral tribunal of jurisdiction to adjudicate a dispute, without clear language to the contrary.
That case concerned a bilateral investment treaty between Argentina and the United Kingdom. The treaty contained a multi-tier dispute resolution clause that stated that prior to the commencement of an arbitration by a foreign investor, the investor was required to submit the dispute to a local court. However, the claimant commenced arbitration against Argentina without first submitting the dispute to a local court.
Accordingly, Argentina applied to the arbitral tribunal to dismiss the case for lack of jurisdiction. The tribunal, however, determined that it had jurisdiction and rendered a final award. Argentina then sought to vacate the final award before the United States District Court for the District of Columbia on the basis that the tribunal did not have jurisdiction on account of the claimant’s failure to comply with the pre-arbitral steps. The District Court denied Argentina’s claims and confirmed the award. But Argentina appealed, and the US Court of Appeals for the District of Columbia Circuit reversed and vacated the award, holding that the arbitral tribunal lacked jurisdiction to decide the dispute.
Argentina then appealed to the Supreme Court. The Supreme Court analysed the issue by considering whether the multi-tier clause constituted a ‘procedural’ or a ‘substantive’ condition precedent to arbitration. If a procedural condition precedent, it observed that it was for the tribunal to determine whether the multi-tier clause bound the parties to carry out the pre-arbitral steps prior to commencing arbitration – in effect, then, that the tribunal had jurisdiction to determine what, if any consequences, should arise from a party’s failure to comply with pre-arbitral steps, such as a determination on the admissibility of a claim. By contrast, the Supreme Court stated that if the pre-arbitral steps constituted a substantive condition precedent, it meant that it constituted a substantive limitation on a party’s right to commence arbitration, and a failure to comply with such pre-arbitral steps would be a jurisdictional bar to a party’s commencing arbitration.
Ultimately, the Supreme Court found that the pre-arbitral steps constituted procedural conditions precedent, reversed the Court of Appeals and found that the tribunal had jurisdiction to adjudicate the dispute between the claimant and Argentina. Important to this finding was the fact that the multi-tier clause was, in the majority’s view, ‘a claims-processing rule that governs when the arbitration may begin, but not whether it may occur or what its substantive outcome will be on the issues in dispute’. In other words, had the multi-tier clause expressly stated that it was a legally binding condition precedent to arbitration, it very likely would have been held to constitute a substantive and jurisdictional condition precedent to arbitration.
BG Group is consistent with other cases in the United States that have held that pre-arbitral steps in multi-tier clauses do not constitute jurisdictional conditions precedent absent express language to the contrary. For example, in Int’l Ass’n of Bridge, Structural v. EFCO Corp and Constr. Products Inc, the Court of Appeals for the Eighth Circuit was confronted with a multi-tier clause requiring that the parties undertake certain pre-arbitral procedures. The plaintiff filed suit with the District Court for the Southern District of Iowa to compel arbitration of a dispute with the defendant. The defendant, however, resisted on the ground that the plaintiff had failed to comply with the pre-arbitral steps in the multi-tier clause. The District Court agreed with the defendant and denied the plaintiff’s application to compel arbitration.
On appeal, however, the Court of Appeal reversed the District Court’s findings. Like the Supreme Court in BG Group, it held that the pre-arbitral steps constituted procedural, not substantive, conditions precedent, and accordingly ruled that an arbitral tribunal had jurisdiction to rule on the consequences of the plaintiff’s failure to comply with the pre-arbitral steps. In so holding, therefore, it ruled that pre-arbitral steps in a multi-tier clause do not constitute jurisdictional conditions precedent absent language to the contrary.
BG Group and EFCO Corp also appear to be consistent with other decisions in the United States that have ruled that pre-arbitral steps in multi-tier clauses are jurisdictional conditions precedent to arbitration. For example, in HIM Portland LLC v. DeVita Builders Inc, the US Court of Appeals for the First Circuit was confronted with a multi-tier clause that stated that the parties were required to engage in mediation prior to arbitration, and expressly stated that such mediation was ‘a condition precedent to arbitration’. In that case, therefore, the Court of Appeals ruled that mediation was a jurisdictional condition precedent to arbitration, as the contract stated ‘in the plainest possible language that mediation [was] a condition precedent to arbitration’ and that it was ‘difficult to imagine language which more plainly states that the parties intended to establish mediation as a condition precedent to arbitration proceedings’. A similar outcome was reached on the basis of explicit ‘condition precedent’ language in Ponce Roofing Inc v. Roumel Corp. In those cases, the courts found that the pre-arbitral steps constituted ‘substantive’ conditions precedent that barred the commencement of arbitration until the steps had been fulfilled because – unlike the multi-tier clauses at issue in BG Group and EFCO Corp – the clauses expressly stated that the pre-arbitral steps were ‘conditions precedent’ to arbitration.
Recent decisions confirm that the decisions in BG Group and EFCO Corp continue to remain the prevailing view in the United States. In a 2021 decision George Weis Co v. Am 9 Constr, the Eastern District of Missouri was tasked with deciding whether a mediation clause in a multi-tier clause was a condition precedent to arbitration. In that case, the parties entered into both a master subcontractor agreement and a general contract to remodel a movie theatre. The master subcontractor agreement contained an arbitration clause ‘for any claim subject to, but not resolved by, mediation pursuant to Article 15 of AIA 2’, referring to the American Institute of Architects Document A201-2017, which contained the general conditions of contract. Article 15 of the American Institute of Architects document was submitted to the court in two different versions. George Weis’ version explicitly stated that ‘claims shall be subject to mediation as a condition precedent to binding dispute resolution’, while Am 9 Construction submitted an amended version that stated that ‘claims may be subject to mediation if the parties agree to mediate’. Although there was significant disagreement on the substance of the clause, and whether it expressly stated that mediation was a condition precedent to arbitration, the Court ultimately found the condition precedent before it to be comparable to many other conditions precedent that the Eighth Circuit Court of Appeal have found to be procedural, rather than substantive, in nature. Thus, the court held that the condition precedent was procedural in nature, and not a jurisdictional condition precedent to arbitration.
Notwithstanding the foregoing, there are a number of cases in the United States where courts have ruled that pre-arbitral steps in multi-tier clauses constitute jurisdictional conditions precedent to arbitration, even without express reference to ‘condition precedent’. For example, in Kemiron Atlantic Inc v. Aguakem International Inc, the parties did not use express language in their multi-tier dispute resolution clause, but the Court of Appeals for the Eleventh Circuit found that the pre-arbitral steps in the clause constituted jurisdictional conditions precedent to arbitration. Similarly, in Red Hook Meat Corp v. Bogopa-Columbia Inc, the Supreme Court of New York likewise held that pre-arbitral steps in a multi-tier clause constituted jurisdictional conditions precedent even though the clause did not use the term ‘condition precedent’ or any other mandatory phrase.
Thus, while the prevailing view adopted by the United States Supreme Court and other Courts of Appeal appears to be that pre-arbitral steps in multi-tier clauses do not constitute jurisdictional conditions precedent absent clear language to that effect, a number of other cases have held otherwise. Accordingly, it remains to be seen how US courts will deal with this issue in the future.
Moreover, even in cases where US courts have ruled that pre-arbitral steps do not constitute jurisdictional conditions precedent because they are not substantive in nature, they have acknowledged that they are procedural conditions precedent, and that it is up to arbitral tribunals to determine what, if any, consequences should arise from any failure to comply with such conditions precedent. In other words, US courts have not gone so far as to state that pre-arbitral steps are not conditions precedent to the commencement of an arbitration, just that arbitral tribunals are the correct forum of assessing what consequences should arise from any failure to comply rather than the courts. In these circumstances, US courts have not ruled out that the appropriate remedy for any failure to comply with a pre-arbitral step in a multi-tier clause may still be the dismissal of claims on the grounds of inadmissibility or otherwise.
In Switzerland, the prevailing view appears to be that a failure to comply with a pre-arbitral step in a multi-tier dispute resolution clause does not deprive an arbitral tribunal of jurisdiction to adjudicate a dispute.
In a Swiss First Civil Law Court decision from March 2016, two companies, X and Y, entered into a series of contracts that contained multi-tier dispute resolution clauses requiring the parties to undertake conciliation proceedings prior to arbitration. Following the emergence of a dispute, Y submitted a demand for conciliation. Before the conciliation was formally terminated, however, Y commenced arbitration proceedings. While X participated in the appointment of the arbitral tribunal, it objected to its jurisdiction owing to Y’s failure to comply with the contracts’ pre-arbitral steps. Following an exchange of briefs, the tribunal rendered a partial award confirming its jurisdiction. X challenged the tribunal’s decision at the Swiss Court and argued, among other things, that the tribunal wrongly accepted jurisdiction, its jurisdiction should be terminated and Y’s claim should be rejected.
The Swiss Court accepted that the multi-tier clause required the parties to engage in conciliation prior to commencing arbitration. However, it refused to terminate the tribunal’s jurisdiction or to reject Y’s claim. Rather, it held that terminating the tribunal’s jurisdiction ‘is certainly not the most appropriate solution’ as doing so would require that another tribunal be constituted following conciliation proceedings, accomplishing little more than prolonging the proceedings and creating additional costs. Further, it observed that in other circumstances, such a finding could lead to unduly punitive results, particularly in circumstances where a limitation period had expired following the commencement of an arbitration.
Accordingly, the Swiss Court found that the most sensible solution was simply to stay the arbitration so that the conciliation proceedings could take place, after which the arbitration could resume before the originally constituted tribunal. The Court further ruled that decisions as to the nature of the stay and the conciliation proceedings should be deferred to the tribunal, which had overall jurisdiction over the dispute.
Therefore, the Court effectively ruled that a pre-arbitral step in a multi-tier dispute resolution clause did not constitute a jurisdictional condition precedent, and that a failure to comply with such a pre-arbitral step would not deprive a tribunal of jurisdiction. However, it did make clear that parties to multi-tier dispute resolution clauses should generally be required to abide by pre-arbitral steps in multi-tier dispute resolution clauses.
Up until 2019, case law emerging from Singapore indicated that Singaporean courts were prepared to attach significant jurisdictional consequences to any failure to satisfy the pre-arbitral requirements of a multi-tier dispute resolution clause. In particular, in the 2013 decision International Research Corp PLC v. Lufthansa Systems Asia Pacific Pte Ltd and another, the Singapore Court of Appeal ruled that strict compliance with multi-tier dispute resolution clauses was a binding precondition to arbitration, the non-compliance with which could deprive a tribunal of its jurisdiction.
In that case, the parties in dispute entered into several contracts related to the supply of technology services. One of the agreements contained a multi-tier dispute resolution clause requiring disputes to be escalated through several negotiation discussions among representatives of increasing seniority from each party prior to the commencement of arbitration. A payment dispute arose between the parties, which was the subject of several meetings, although these meetings did not strictly satisfy the requirements of the multi-tier clause.
The claimant filed a notice of arbitration with the Singapore International Arbitration Centre against the respondent, and the respondent raised a preliminary objection to the tribunal’s jurisdiction on the basis of, among other things, the claimant’s failure to satisfy fully the pre-arbitral steps set out in the multi-tier clause. The tribunal, however, dismissed the objection by way of a preliminary award on jurisdiction. The respondent then applied to the Singapore High Court to set aside the tribunal’s award on jurisdiction, which denied the respondent’s application. The respondent then appealed to the Court of Appeal, seeking an order for the tribunal’s award on jurisdiction to be set aside.
The Court of Appeal held that the pre-arbitral steps in the multi-tier clause were binding conditions precedent to the commencement of arbitration and had to be observed. The Court of Appeal further held that ‘[g]iven that the preconditions for arbitration . . . had not been complied with, and given our view that they were conditions precedent, the agreement to arbitrate . . . could not be invoked’, and that ‘[t]he Tribunal therefore did not have jurisdiction over [the respondent] and its dispute with [the claimant]’. It is noteworthy that the Court of Appeal in Lufthansa Systems observed that there were a number of other grounds on which the tribunal’s jurisdiction should have been rejected.
Nevertheless, a 2020 decision of the Singapore Court of Appeal in BTN v. BTP  calls into question the extent to which Singapore Courts will hold that pre-arbitral steps in multi-tier clauses constitute jurisdictional conditions precedent to the commencement of arbitration proceedings moving forward.
In BTN and another v. BTP and another (as is the full style of cause), BTN, one of the appellants, purchased a 100 per cent stake in a Malaysian company, BTO, the other appellant, from the respondents, BTP and BTQ, through a share purchase agreement. The agreement contained ‘an arbitration clause requiring arbitration under the Singapore International Arbitration Centre, and an exclusive jurisdiction clause in favour of the Mauritian courts’. Both respondents, BTP and BTQ, then entered into separate Promoter Employment Agreements with BTN allowing them to continue working for BTO. Following this, the respondents were told they were being dismissed from BTO ‘With Cause’. The respondents appeared in front of the Malaysian Industrial Court, which found that they had been dismissed ‘Without Cause’. Under the respondents’ promoter employment agreements, being dismissed ‘Without Cause’ entitled the respondents to significant compensation from the appellants. The respondents subsequently commenced arbitration proceedings against the appellants for the compensation owed, and the tribunal ruled in their favour. The tribunal also found that the prior decision of the Malaysian Industrial Court meant that the appellants could not reargue that the respondents’ termination was ‘With Cause’ because the issue was res judicata. BTN and BTO then applied to the Singaporean High Court to set aside the tribunal’s award on the basis that the tribunal lacked jurisdiction to rule on the issue of res judicata. The High Court dismissed the application for set-aside, finding that the res judicata issue was not an issue of jurisdiction. The appellants then appealed to the Singapore Court of Appeal. The Court of Appeal dismissed the appeal, finding that res judicata was an issue of admissibility and not jurisdiction and therefore the court had no basis on which to set aside the arbitral award. In its reasons, the Court of Appeal adopted the proposition that ‘tribunals’ decisions on objections regarding preconditions to arbitration, like time limits, the fulfilment of conditions precedent such as conciliation provisions before arbitration may be pursued, mootness and ripeness are matters of admissibility, not jurisdiction.’ In reaching its decision, the Court of Appeal relied on its reasoning in a prior 2019 decision in Swissbourgh Diamond Mines (Pty) Ltd and others v. Kingdom of Lesotho, for the distinction between the concepts of admissibility and jurisdiction, where the Court of Appeal held that jurisdiction refers to the power of the tribunal to hear a case, whereas admissibility refers to whether it is appropriate for the tribunal to hear it.
The findings of the Singapore Court of Appeal in BTN v. BTP was cited with approval by the High Court in the Republic of Sierra Leone v. SL Mining Ltd decision discussed above. Thus, it would appear that, much like their UK counterparts, the Singaporean courts have moved away from treating multi-tier dispute resolution clauses as jurisdictional conditions precedent to arbitration in favour of treating them as conditions to admissibility of claims. However, it does not follow from this that failure to comply with pre-arbitration steps in multi-tier clauses will not result in the dismissal of claims. Rather, it simply means that arbitral tribunals are the correct entities to decide what consequences, if any, flow from a failure to comply with pre-arbitral steps in multi-tier clauses, and that claims can still potentially be dismissed on the ground of inadmissibility.
Hong Kong recently joined the UK, the US, and Singapore in their reluctance to treat multi-tier dispute resolution clauses as jurisdictional conditions precedent to arbitration. This authority comes from a 2021 review by the High Court of Hong Kong of a Partial Award rendered in a confidential arbitration. In that case, the parties entered into an agreement for the development and manufacture of a satellite. The agreement stated that if a party thought that the other was in default, it was to give written notice to the other party. If the other party failed to remedy its default within 30 days, the parties were to ‘attempt in good faith’ to resolve the dispute by negotiation. A subsection further permitted either party to have the dispute referred to the chief executive officers of their respective companies. If the parties could not come to an agreement within 60 business days, the dispute was to be referred to arbitration.
In the circumstances of that case, the claimant wrote a letter to the chief executive officer of the respondent, stating that the respondent was in breach of the parties’ agreement, and stating it was issuing that correspondence as a last effort prior to further legal proceedings. The respondent requested that, per the parties’ agreement, all communications were to be sent directly to their counsel. No further correspondence occurred until the claimant issued a notice referring the dispute to arbitration. The respondent then objected to the jurisdiction of the arbitral tribunal, on the grounds that the claimant breached the condition precedent of negotiation.
The High Court agreed that the clause requiring negotiation was a condition precedent to arbitration. However, after canvassing case law in the US, UK, Singapore and Hong Kong, the High Court agreed that failure to comply with the condition precedent went to the question of admissibility and not the jurisdiction of the tribunal. The Court noted that this still conferred significant power to arbitrators, permitting them to enforce dispute resolution clauses as conditions precedent to arbitration. These views are consistent with the authorities in other jurisdictions, discussed elsewhere in this chapter.
In Australia, it appears that pre-arbitral steps in multi-tier clauses are generally considered to be enforceable and binding on the parties, but it is unclear whether they constitute jurisdictional conditions precedent to arbitration. Recent case law has done little to add clarity to this topic.
For example, in United Group Rail Services Ltd v. Rail Corp New South Wales, the contract at issue contained a multi-tier clause that required that disputes be referred to party representatives to ‘meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference’ prior to arbitration.
The issue before the New South Wales Court of Appeal was whether the requirement for negotiation in the multi-tier clause was enforceable and binding on the parties. After reviewing the history of legal scholarship on the subject – including English case law – the Court of Appeal found that the requirement for negotiation was enforceable.
However, it is not clear from the Court of Appeal’s determination whether the Court of Appeal would be of the view that the negotiation requirement was not only enforceable, but also a jurisdictional condition precedent to arbitration – that is to say, that a failure to comply with the negotiation requirement would result in the termination of a tribunal’s jurisdiction, or the set-aside of an arbitral award for lack of jurisdiction. It should also be noted that United Group Rail has been characterised by academic commentators as an outlier that stands against the Australian courts’ predominant view that agreements to negotiate are too uncertain to be enforceable as they do not create binding obligations.
Recent Australian case law has done little to bring certainty to the question of whether a multi-tier clause constitutes a jurisdictional condition precedent to arbitration, or is even enforceable in the first place.
For instance, in its 2021 decision in Tesseract International Pty Ltd v. Pascale Construction Pty Ltd, the Supreme Court of South Australia ruled that a pre-arbitral step in a multi-tier clause constituted a jurisdictional condition precedent to arbitration. In that case, the parties entered into a contract for the construction of a warehouse. The contract provided that ‘if a dispute between the Builder and Consultant arises in connection with this Contract, then either party must deliver to the other a notice of dispute identifying and providing details of the dispute.’ It further provided that ‘if the dispute is not resolved by dispute conciliation either party may refer the dispute to arbitration by notifying in writing the other party.’ The Court found that conciliation was a jurisdictional condition precedent to arbitration based on (1) the ordering of the provisions (the conciliation provisions appeared in the contract first); (2) the logic of an informal process occurring before a formal one; and (3) that conciliation expressly applied when a dispute ‘arises’, whereas arbitration expressly applied ‘if the dispute is not resolved by dispute conciliation’.
By contrast, in the 2020 decision of the Queensland Civil and Administrative Tribunal in Contrast Constructions Pty Ltd v. Allen, the Tribunal refused to enforce a negotiation clause because it found that there was no prospect of the dispute resolution process achieving any useful outcome.61 Although this case arose outside of the arbitration context, its analysis is nonetheless instructive. In this case, the parties contracted to build a house and after falling into dispute, purported to terminate the contract. The contract provided ‘if a difference or a dispute between the parties arises in connection with the subject matter of the contract, […] then either party shall […] give the other and the superintendent a written notice of dispute adequately identifying and providing details of the dispute’. The contract required the parties to then confer at least once to resolve the dispute within 14 days of receiving a notice of dispute. If the dispute had not been resolved within 28 days of service of the notice of dispute, either party had the option of referring the dispute to the Queensland Civil and Administrative Tribunal, among other options. The respondents sought to compel the applicant to follow the negotiation clause before commencing proceedings before the Tribunal to obtain damages for breach of contract. However, the Tribunal noted the numerous opportunities the parties already had to settle their dispute and concluded that it was futile to hold the applicants to the terms of the negotiation clause.  The Tribunal noted, as one of the most relevant factors, that the parties had previously participated in a compulsory conference, which failed to resolve the dispute. The Tribunal concluded that it was ‘almost inevitable that any informal dispute resolution process will produce no result other than to prolong the present proceedings’ and refused to stay proceedings on that basis.
Accordingly, there seems to be no conclusive answer yet regarding whether Australia finds multi-tiered dispute resolution clauses enforceable and jurisdictional conditions precedents to arbitration. It remains to be seen how Australian law develops on the subject.
Treatment of multi-tier dispute resolution clauses by arbitral tribunals
Arbitral tribunals have demonstrated a general reluctance to choosing a course of action that would bar the commencement of an arbitration or deprive a tribunal of jurisdiction where a party has failed to fulfil the pre-arbitral steps in a multi-tier clause.
For example, Ethyl Corporation v. Canada was commenced under Chapter Eleven of the North American Free Trade Agreement (NAFTA). Article 1120 of NAFTA required that a foreign investor could only commence an arbitration ‘provided that six months have elapsed since the events giving rise to a claim’. In that case, a US investor commenced an arbitration against Canada with respect to a measure that was in the process of being enacted more than six months prior to the commencement of the arbitration, but that only took legal effect within six months prior to the commencement of the arbitration. Accordingly, Canada objected to the jurisdiction of the tribunal on the ground that the claimant failed to wait the full six months required by Article 1120 prior to commencing arbitration.
While acknowledging that Canada was technically correct, and that the claimant had jumped the gun when it commenced the arbitration, the tribunal rejected Canada’s objection to its jurisdiction. To begin, it held that if it were to rule that it did not have jurisdiction, such a determination would be inconsistent with the object and purpose of NAFTA, which ‘would not be best served by a rule absolutely mandating a six-month respite following the final effectiveness of a measure until the investor may proceed to arbitration’. Further, the tribunal held that ‘no purpose would be served by any further suspension of Claimant’s right to proceed’. In particular, the tribunal ruled that because the measure took legal effect within the six months of the date on which the arbitration was commenced, ‘[i]t is not doubted that today Claimant could resubmit the very claim advanced here’ and that ‘a dismissal of the claim at this juncture would [therefore] disserve, rather than serve, the object and purpose of NAFTA’. In other words, the tribunal held that little purpose would be served by dismissing the arbitration for lack of jurisdiction, other than to cause wasted time and expense. Accordingly, the tribunal held that the claimant’s failure to satisfy Article 1120 of NAFTA should not ‘be interpreted to deprive this Tribunal of jurisdiction’. However, it ruled that because claimant did fail to comply with Article 1120, claimant should bear all costs associated with the jurisdictional proceedings.
Similarly, Salini Costruttori v. Morocco involved a bilateral investment treaty between Italy and Morocco that contained a multi-tier clause requiring that all disputes ‘should, if possible, be resolved amicably’ and that a dispute could only be referred to arbitration if it ‘cannot be resolved in an amicable manner within six months of the date of the request [for amicable settlement]’. In that case, two Italian investors commenced an arbitration against Morocco, and Morocco objected to the tribunal’s jurisdiction on the ground that the investors failed to comply with the pre-arbitral steps of the multi-tier clause. In particular, Morocco alleged that the investors had failed to seek to negotiate the dispute within the six months pre-dating the commencement of the arbitration with the necessary governmental authorities. In response, the investors pointed to a number of letters and memoranda they had sent to various branches of the Moroccan government generally referring to the dispute.
The tribunal ultimately rejected Morocco’s application to dismiss the case for lack of jurisdiction. In particular, the tribunal observed that:
The mission of this Tribunal is not to set strict rules that the Parties should have followed; the Tribunal is satisfied to determine if it is possible to deduce from the entirety of the Parties’ actions whether, while respecting the term of six months, the Claimant actually took the necessary and appropriate steps to contact the relevant authorities in view of reaching a settlement, thereby putting an end to their dispute.
Because the investors had issued correspondence and memoranda that generally referred to the dispute to Moroccan government authorities, the tribunal concluded that they ‘constitute[d] a written request aimed toward the amicable settlement of the dispute and satisf[ied] the requirement set out in the Bilateral Treaty’. In so holding, the tribunal demonstrated a reluctance to interpret strictly the pre-arbitral steps in the multi-tier clause as binding conditions precedent to arbitration to avoid the termination of the arbitration.
Likewise, in an ICC case from 2001, the contract at issue required that the parties undertake efforts to negotiate disputes prior to submitting them to arbitration. In that case, the claimant commenced an arbitration against the respondent without making any effort to negotiate, and the respondent consequently challenged the jurisdiction of the tribunal.
In its defence, the claimant contended that negotiations would have been futile and urged the tribunal to accept jurisdiction.
The tribunal rejected the respondent’s application and asserted jurisdiction over the dispute. It relied in large measure on its finding that there would have been little prospect of settlement had they carried out negotiations prior to arbitration. In particular, the tribunal stated:
The arbitrators are of the opinion that a clause calling for attempts to settle a dispute amicably are primarily expression of intention, and must be viewed in the light of the circumstances. They should not be applied to oblige the parties to engage in fruitless negotiations or to delay an orderly resolution of the dispute.
Accordingly, the arbitrators have determined that there was no obligation on the claimant to carry out further efforts to find an amicable solution, and that the commencement of these arbitration proceedings was neither premature nor improper.
In view of the above cases, it appears that arbitral tribunals are generally reluctant to find that pre-arbitral steps in multi-tier dispute resolution clauses are jurisdictional conditions precedent to the commencement of arbitration, particularly where doing so would have the effect of terminating an arbitration or otherwise depriving a tribunal of jurisdiction.
The determination of whether the pre-arbitral steps in a multi-tier dispute resolution clause constitute jurisdictional conditions precedent can have very serious consequences.
For example, if a claimant commences an arbitration without complying with the pre-arbitral steps in a multi-tier clause, and a limitation period expires while the arbitration is pending, a finding that the pre-arbitral steps constituted a jurisdictional condition precedent can result in the arbitration being dismissed and the claimant being time-barred from pursuing its claims.
Similarly, if a claimant fails to carry out pre-arbitral steps in a multi-tier clause and successfully obtains a final award against the respondent, a determination by a national court after the conclusion of the arbitration that the pre-arbitral steps constituted jurisdictional conditions precedent could result in the award being set aside or otherwise not enforced for lack of jurisdiction.
Moreover, even where pre-arbitral steps are not found to constitute jurisdictional conditions precedent, there is a risk that arbitral tribunals could dismiss claims for lack of admissibility where there is a failure to perform those pre-arbitral steps.
As a result, multi-tier dispute resolution clauses bring with them significant risks, and there are a number of considerations both transactional lawyers and arbitration practitioners need to bear in mind when confronted with such multi-tier clauses.
Practical guidelines for transactional lawyers
While recent years have seen increasing pushback against the idea that multi-tier dispute resolution clauses constitute jurisdictional conditions precedent to arbitration, there are still risks. As such, careful consideration should be given to whether a multi-tier dispute resolution clause should be included in an arbitration clause at all. Often, commercial parties in the energy industry will request that they be included to maximise the likelihood of reaching a settlement prior to arbitration. However, the risks associated with such clauses should be clearly explained, as well as the reality that there is nothing to prevent commercial parties from seeking to negotiate a settlement – or, indeed, to agree to participate in a formal mediation or conciliation process – at any time, regardless of whether the parties’ dispute resolution clause formally requires the parties to do so. As a result, transactional lawyers should carefully assess with their clients whether a multi-tier dispute resolution clause is necessary or desired.
To the extent that a multi-tier clause is desired and the parties wish for the pre-arbitral steps in the clause to constitute binding conditions precedent, transactional lawyers should ensure the following are considered:
- the multi-tier clause should expressly and unequivocally state that the pre-arbitral steps are conditions precedent to the commencement of arbitration, and that arbitration may not be commenced until such time as they have been fulfilled; and
- the pre-arbitral steps should be described in detail, with clear, unequivocal, and determinate language to ensure that they can be followed and enforced.
For instance, where the parties wish to incorporate a requirement that the parties negotiate prior to commencing arbitration, they should avoid simply stating that the parties must negotiate prior to arbitration. Rather, the clause should specify precisely what the parties’ obligations are. For example, the clause should specify:
- what event triggers the commencement of the negotiation period (e.g., the issuance of a written notice);
- the precise period over which the parties must negotiate prior to commencing arbitration;
- precisely what party representatives must participate in the negotiations (e.g., the parties’ chief executive officers);
- precisely how the negotiations are to take place (e.g., in person, by telephone conference, by virtual platform or otherwise);
- precisely how many negotiation sessions are required; and
- a clear event that triggers the termination of the negotiation requirement (e.g., the expiration of the negotiation period).
Similarly, where the parties wish to incorporate a requirement that formal mediation or conciliation proceedings take place prior to arbitration, they should again avoid simply stating that mediation or conciliation is required prior to arbitration. Rather, they should specify:
- what event triggers the commencement of the conciliation or mediation (e.g., the issuance of a written notice);
- the precise period in which the parties will be required to mediate or conciliate;
- an institution before which mediation or conciliation is to take place;
- the mediation or conciliation rules that will apply;
- precisely what party representatives are required to participate;
- precisely how many sessions are required; and
- a clear event that triggers the termination of the mediation or conciliation.
Lastly, whether the parties incorporate negotiation, mediation or conciliation as a pre-arbitral condition precedent, they should also avoid using indeterminate statements that require the parties to negotiate, mediate or conciliate ‘genuinely’ or in ‘good faith’, for example, to avoid either party being able to assert that while its counterpart may have participated in negotiation, mediation or conciliation sessions as required, it did not do so genuinely or in good faith, to pre-empt the commencement of an arbitration.
Where the parties wish to incorporate multiple tiers of pre-arbitral steps (e.g., negotiation among low-level representatives, followed by negotiation among higher-level representatives, followed by mediation or conciliation), the transition between the different tiers must be outlined in sufficient detail so that the sequence of procedures can be clearly followed and enforced.
Finally, if the parties wish to include the possibility of holding pre-arbitration discussions without elevating them to binding jurisdictional conditions precedent, the simplest way to accomplish this would be to state that they are not conditions precedent to the commencement of arbitration. Further, the parties should avoid any mandatory language that could be interpreted as making the pre-arbitral steps conditions precedent to arbitration such as ‘shall’ or ‘must’, and instead use permissive verbs such as ‘can’ and ‘may’.
Practical considerations before initiating arbitration
When advising a party contemplating arbitration, careful attention should be paid to whether there is a multi-tier clause in the parties’ agreement that will need to be satisfied prior to serving a notice of arbitration. Failure to do so may result in an objection from the opposing party that the tribunal has not been appropriately vested with jurisdiction, an allegation that may result in the termination of the arbitration or, at worst, lead to the set-aside or non-enforcement of an award after it has been delivered. Failure to do so could also result in an objection from the opposing party that a claim or group of claims are inadmissible.
To minimise the risk of objections arising from an alleged failure to comply with a multi-tier clause, counsel should undertake the following steps, to the extent applicable:
- counsel should ensure that the parties have carefully performed all steps required by the multi-tier clause prior to commencing arbitration;
- counsel should carefully document the commencement, performance and completion of all pre-arbitral steps required by the multi-tier clause so that there is a clear documentary record of the parties’ compliance;
- prior to commencing the pre-arbitral steps, counsel should ensure that all limitation periods or time considerations have been taken into account, and that ample time is provided for the pre-arbitral steps to be carried out to avoid any time-bar or prescription issues;
- prior to commencing the pre-arbitral steps, counsel should review the claims that will be advanced in the arbitration, with expert assistance if necessary, to ensure that all claims that will be made form part of the pre-arbitral negotiations, mediation or conciliation, and written notice should be provided of all such claims prior to commencing the pre-arbitral procedure. This will prevent a counterparty from asserting that specific claims made in the arbitration were not previously raised as required by the multi-tier clause to challenge a tribunal’s jurisdiction. If insufficient time is available for counsel to undertake this prior to commencing the pre-arbitral steps, the disputes at issue should be framed as broadly as possible in the party’s notice and during the negotiations, mediation or conciliation to ensure that all claims raised in the arbitration can be linked back to the pre-arbitration discussions; and
- in the event that the respondent is served with notice of the commencement of the pre-arbitral steps by the claimant and the respondent anticipates it will advance counterclaims in a future arbitration, the respondent should ensure that all potential counterclaims form part of the pre-arbitral negotiations, mediation or conciliation and that written notice of them is provided so that the claimant cannot seek to have such counterclaims dismissed for lack of jurisdiction. Ideally, the respondent should review the counterclaims that will be advanced in the arbitration, with expert assistance if necessary, to ensure that all such counterclaims specifically form part of the pre-arbitral procedure. But, if insufficient time is available, the counterclaims should be framed as broadly as possible to ensure that all counterclaims raised in the arbitration can be linked back to the pre-arbitration discussions.
Given the collaborative nature of the energy industry, parties and joint ventures to energy-related contracts may be inclined to include a multi-tier clause into their agreements to avoid the cost of arbitration and to minimise any upset to the parties’ ongoing relationship that would result from escalated proceedings. Despite the benefits that flow from such clauses, however, consideration must be given to whether a multi-tier clause warrants inclusion in an agreement, particularly if both parties are sophisticated, as is often the case in the energy industry, and are likely to engage in settlement negotiations irrespective of the presence of a multi-tier clause.
The assessment of whether to include a multi-tier clause in an agreement must take into account the risks that may arise from the failure to comply with such a clause. While recent years have seen increasing reluctance among national courts and arbitral tribunals to find multi-tier clauses as jurisdictional conditions precedent to arbitration, there is still a risk that a failure to comply with them may have jurisdictional or admissibility consequences. Accordingly, multi-tier clauses should not be treated as boiler-plate provisions whose inclusion in an arbitration agreement can be treated as an afterthought. Nor should multi-tier clauses be ignored in the lead-up to an arbitration. Rather, given their potentially very serious ramifications, counsel should pay careful attention to multi-tier clauses, and fully apprise their clients of the implications of not complying with them.
 Vasilis F L Pappas and Artem N Barsukov are partners of Bennett Jones LLP. The authors would like to express their gratitude to Madison Bergen for all of her assistance in the preparation of this article.
 Didem Kayali, ‘Enforceability of Mutli-tiered Dispute Resolution Clauses’ (2010) 27:6 Journal of International Arbitration 551 at 552.
 Nigel Blackaby et al. Redfern and Hunter on International Arbitration 6th ed, (Oxford: Oxford University Press, 2015) at para 2.88; Alexander Jolles, ‘Consequences of Multi-tier Arbitration Clauses: Issues of Enforcement’ (2006) 72:4 Arbitration 329 at 329; Oliver Krauss, ‘The Enforceability of Escalation Clauses Providing for Negotiations in Good Faith Under English Law’ (2015-2016) 2:142 McGill Journal of Dispute Resolution 142 at 143; Craig Tevendale, Hannah Ambrose & Vanessa Naish, ‘Mutli-tier Dispute Resolution Clauses and Arbitration’ (2015) 1:31 Turk Com L Rev 31 at 32.
 Gary Born & Marija Scekic, ‘Pre-Arbitration Procedural Requirements, A Dismal Swamp’ in DD Caron, Practising Virtue: Inside International Arbitration (Oxford: Oxford University Press, 2016) 227 at 230; Kayali, above at 552-53; Krauss, above at 144-145; Tevendale above at 32–33.
 Kayali, above at 553; Tevendale, above at 34.
 See section 'Recent treatment of multi-tier dispute resolution clauses by national courts', below.
 Louis Flannery and Robert Merkin, ‘Emirates Trading, Good Faith and Pre-Arbitral ADR Clauses: A Jurisdictional Precondition?’ (2015) 31 Arb Int’l 63 at 65–66; Born, above at 228.
  1 All ER, at 460.
 Sulamerica CIA Nacional de Seguros v. Enesa Engenharia,  EWCA Civ 638.
 ibid, at para. 5.
 ibid, at para. 36.
  EWHC 3198 (Ch).
 ibid, at para. 27.
 ibid, at para. 63.
 Flannery, above at 65.
  EWHC 2014 (Comm).
 ibid, at para. 26.
 Flannery, above at 65–66 and 102–103.
  EWHC 286 (Comm).
 Emirates, above .
 ibid, at para. 16.
 BG Group PLC v. Republic of Argentina, 572 _ (2014) (slip op.).
 ibid, at 8–9 and 15–17.
 ibid, at 9.
 359 F.3d 954 (8th Cir. 2004).
 ibid, at 956–957.
 317 F 3d 41 (1st Cir 2003).
 ibid, at 44.
 Ponce Roofing, Inc v. Roumel Corp, 190 F Supp 2d 264 (DPR 2002).
 George Weis Co. v. Am. 9 Constr., 4:21-cv-00820-SRC (E.D. Mo. 29 October 2021)
 290 F 3d 1287 (11th Cir 2002).
 ibid, at 1291.
 Red Hook Meat Corp v. Bogopa-Columbia, Inc, 31 Misc 3d 814 at 819 (NY Sup Ct 2011).
 ibid, at 19.
 ibid, at 20.
 ibid, at 13.
  SGCA 55.
 ibid, at para. 63.
  SGCA 105.
 ibid, at para. 71–72.
  1 SLR 263.
 ibid, at para. 207.
 C v. D,  HKCFI 1474.
 ibid, at para. 5.
 ibid, at para. 6.
 ibid, at para. 17.
 ibid, at para. 29.
 ibid, at para. 49.
  NSWCA 177.
 ibid, at para. 15.
 ibid, at para. 81.
 Kayali, above at 570.
 Tesseract International Pty Ltd v. Pascale Construction Pty Ltd  SASCA 8.
 ibid, at para. 5.
 ibid, at para. 37.
  QCAT 194.
 ibid, at para. 39.
 ibid, at para. 1.
 ibid, at para 5.
 ibid, at para. 39.
 ibid, at para. 37.
 ibid, at para. 37.
 Gary Born, International Commercial Arbitration 2nd ed (Kluwer Law International, 2014) at 923–924.
 Ethyl Corp v. Gov’t of Canada, in NAFTA Award on Jurisdiction (24 June 1998), 38 Int’l Legal Mat 708.
 ibid, at para. 83.
 ibid, at para. 84.
 ibid, at para. 85.
 ibid, at para. 88.
 Salini Costruttori v. Morocco, Decision on Jurisdiction ICSID Case No. ARB/00/4 (23 July 2001).
 ibid, at para. 15.
 ibid, at para. 19.
 ICC Case No. 8445, Final Award, XXVI Y.B. Comm. Arb. 167 (2001).
 ibid, at 169.
 Jason File, ‘United States: multi-step dispute resolution clauses’ IBA Legal Practice Division Mediation Committee Newsletter (July 2007) 33 at 35.