The meaning of “arbitration agreement”: unilateral and optional clauses

The obligation of a Singapore court to stay its proceedings where there is a valid and applicable arbitration clause, under section 6 of the International Arbitration Act, is for all relevant purposes identical to the duty of the English court under section 9 of the Arbitration Act 1996. In each case, a stay can be refused only if there is no arbitration agreement or if the arbitration agreement is null and void, inoperative or incapable of being performed.

In Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2016] SGHC 238 Vinodh Coomaraswamy J considered the question whether, for stay purposes, a clause whereby one party alone had the right to determine whether or not there should be a reference to arbitration amounted to an arbitration agreement even though the election to arbitrate had not been exercised. The decision was upheld in a relatively brief decision by the Singapore Court of Appeal , [2017] SGCA 32, albeit on rather different grounds.