Until the decisions of the Supreme Court or the legislature are resolved, the position of the asymmetric arbitration clauses remains unclear under Indian law. Although recent cases indicate that Indian courts will allow some asymmetry in arbitration clauses, the situation is far from settled and the parties should approach the asymmetrical clauses with caution. The Singapore Court of Appeal recently upheld the validity of an asymmetric clause in Dyna-Jet Pte Ltd v. Wilson Taylor Asia Pacific Pte Ltd  SGCA 32. The clause provided that the election of a party (Dyna-Jet) could be the subject of a dispute and be settled by arbitration proceedings. Therefore, the clause was not only asymmetrical and “non-reciprocal” but was optional insofar as it depended on a choice of Dyna-Jet. This is the first time that the Court of Appeal has ruled on the validity of an asymmetrical and optional compromise clause under Singapore law. “The parties agree to resolve disputes or disputes arising from this Treaty and conciliation, as provided by the UNCLOSE Arbitration Regulations, for which the Southern Africa Arbitration Foundation will act.” However, since then, the Court of Cassation has adopted a number of controversial decisions refusing to impose unilateral option clauses. These cases had no real impact on asymmetric arbitration clauses, as the proposed option existed between national courts.
Thus, in the Rothschild case (Cass. 1st civ., September 26, 2012, No. 11-26.022), the Court of Cassation ruled that an agreement offering a party the option to choose between a permanent choice of jurisdiction is non-option. International arbitration Chapter IV, Section 16 of the International Arbitration Act stipulates that a compromise clause must be treated as an agreement independently of the other terms of the contract and “a decision of the arbitral tribunal that the contract is void, ipso swears does not imply the invalidity of the compromise clause.”