GE Energy participated in a contract to build steel mills in Alabama, with a compromise clause providing for arbitration in Germany in accordance with ICC rules. Fives instructed GE Energy to deliver engines to the mills, which then failed. After GE Energy took the case to federal court, the regional court granted GE Energy`s request to impose arbitration proceedings against Outokumpu under the Outokumpu-Fives contract, even though GE Energy had never signed the contract. On appeal, the Eleventh Circuit overturned the decision to impose arbitration and found that GE Energy Outokumpu could not compel conciliation if GE Energy had not signed the underlying contract. [13] The Eleventh Circuit justified this decision by the fact that a fair estoppel was not available under the New York Convention, since the agreement provides that the arbitration agreement is “signed by the parties before the Court of Justice or by their non-compliance.” [14] The Supreme Court`s decision in Enka/. Chubb puts an end to uncertainty in the vast majority of cases. It specifies that a choice of the legal clause by universal suffrage constitutes an explicit choice of law that applies to the compromise clause and that, therefore, most cases are now resolved under part (1) of the test. The applicant argued that the court was not required to interpret the arbitration in accordance with Part 6 (2) of the IAA because the defendants did not have an application, since the applicant had never signed the arbitration agreement. This was an issue that could only be decided by the court after a full trial, applying the usual standard of civil proof, as if there were no arbitration agreement between the parties, no court could be formed to rule on the matter.

The Supreme Court stated that “when an international trade treaty contains an arbitration dispute settlement agreement, at least three systems of national law are invoked in the event of a dispute.” It is (i) the law that governs the content of the dispute; (ii) the right that governs the conciliation agreement; and (iii) the law applicable to the arbitration procedure. This case was brought by the party who was the subject of a claim and who sought to preserve his contractual right to hear these claims in the arbitration process. The High Court ruled that an injunction could be issued in these circumstances and used the S.37 of the Senior Courts Act 1981 to assist in the establishment of the necessary “bridges” for the purposes of the RPC Part 62.

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