Jurisdiction: permissive arbitration clause

In National Investment Bank Ltd v Eland International (Thailand) Co Ltd and Another [2022] EWHC 1168 (Comm) Foxton J here decided two key points: that the appointment of an arbitrator by the court under section 18 of the Arbitration Act 1996 did not affect the right of the respondent to contest the jurisdiction of the tribunal under section 72 of the 1996 Act; and that where there is a permissive arbitration clause a decision to opt for litigation amounts to a waiver of the right to arbitrate so that the claimant in the judicial proceedings cannot then insist on arbitration.

Eland : the facts