Must the right to arbitrate be mutual? The Commercial Court says no

The Commercial Court has upheld an LCIA award against jurisdiction and serious irregularity challenges, confirming that a unilateral promise to arbitrate contained in a deed is a valid arbitration agreement.

In A & Ors v E [2026] EWHC 2590 (BP), the Commercial Court dismissed applications under sections 67 and 68 of the Arbitration Act 1996 (the "Act") challenging an LCIA award (the "Award"). The decision confirms that a promise to arbitrate made by deed, and enforceable by only one party, is an "arbitration agreement" under the Act.

The dispute

E is the holding company of a private, family-owned group (the "Group"). The claimants (the "Claimants") are family members who held shares in the Group's operating companies in "Country G" as nominees for E.

In June 2021, each Claimant signed a deed (the "Deed") declaring that they held, and had always held, those shares as nominee and fiduciary for E. Clause 4 provided for any dispute "arising in relation to" the Deed to be resolved by LCIA arbitration, but gave the right to refer to E alone.

When the Claimants later asserted beneficial ownership, E commenced arbitration. The tribunal found for E on all issues, including claims over substantial withdrawals and unauthorised salaries taken from the local companies.

Can a unilateral promise be an arbitration agreement?

The Claimants argued that clause 4 of the Deed lacked mutuality and so fell outside sections 5 (Agreements to be in writing) and 6(1) (Definition of arbitration agreement) of the Act (Issue 1). The court disagreed. English law has long accepted that parties may confer a unilateral right to insist on arbitration (Pittalis v Sherefettin; Anzen v Hermes One). The judge held that a free-standing, binding unilateral promise to arbitrate on request is equally an arbitration agreement, for reasons including:

1. Sections 5 and 6(1) refer to an "agreement", not a contract. That is a wider concept, connoting consent to be bound, which a deed supplies.
2. Excluding promises made by deed would cut across the principle that agreements must be kept, which underpins the Act (UniCredit Bank GmbH v RusChem Alliance LLC).
3. References to the "parties" mean the parties to the agreement to arbitrate, not to a bilateral contract. This fits Article 7(1) of the UNCITRAL Model Law and section 8(2) of the Contracts (Rights of Third Parties) Act 1999.

As the judge put it, there is "no substantive requirement of bilaterality to be found in section 6(1)" ([50]); the only formal requirement is writing. In the alternative, the Deed was written evidence of an agreement reached in the parties' prior exchanges ([51]–[54]).

Conditions precedent and separability

The Claimants alleged two unmet conditions (Issue 2): that the Deed was held in escrow until every shareholder signed, and that E had assured them it would not be enforced. Both failed. The Deed was unconditional on its face and a contemporaneous meeting note recorded the first Claimant's intention to sign "no ifs and buts". Informal assurances by senior executives were not clear and unequivocal promises not to enforce the Deed.

Even had conditions existed, clause 4 would have survived under section 7 of the Act: the clause was agreed in a final executed document and expressly covered disputes about the Deed's existence and validity.

Scope: pre-Deed matters, withdrawals and salaries

Two scope objections also failed:

• Jurisdiction over Pre-Deed matters (Issue 3): the tribunal did not decide freestanding pre-Deed claims. It examined earlier documents only to test the Deed's statement that the Claimants had always held as nominees, and limited its declaration to the effect of the Deed.
• Jurisdiction over Withdrawals and salaries (Issue 4): applying the Fiona Trust presumption (i.e. that rational businesspeople are likely to intend related disputes to be decided by the same tribunal), these disputes fell within clause 4. Its wording ("any dispute or claim arising in relation to this Deed") was far wider than the "arising under" wording in Fiona Trust; the Deed's subject matter was the parties' past and present relationship, and a repayment pledge signed alongside it covered the Claimants' outstanding debts.

The section 68 challenge

The Claimants said the Award's definition of the Country G companies was too broad. The court found no ambiguity once it was read with E's pleaded case. Any residual doubt could be corrected under section 57, and E's undertaking to enforce only on the narrower meaning meant there was no substantial injustice.

Comment

The decision is a useful confirmation of the English courts' pro-arbitration approach, with several practical points for parties and drafters.

• Unilateral arbitration agreements are valid under English law. An arbitration agreement need not give both parties the right to refer. A binding written undertaking to arbitrate at one party's request is enough in principle, whether it appears in a bilateral contract or, as here, in a deed signed by one side.
• The arbitration clause stands on its own. English law treats an arbitration clause as a separate agreement. Arguments that the wider document is conditional or never took effect will not usually undermine the agreement to arbitrate unless they are aimed at the clause itself. 
• The importance of carefully worded arbitration agreements. Parties should think carefully about the disputes they want to arbitrate and expressly exclude any they want resolved elsewhere. A tribunal's jurisdiction is defined, and limited, by the wording of the arbitration clause. The courts will generally assume that commercial parties intend all related disputes to go to the same forum, so wide wording such as "in relation to" can bring in the parties' wider relationship.

A & Ors v E [2026] EWHC 2590 (BP)

Does the treatment of unilateral option clauses vary by jurisdiction?

Unilateral option clauses grant one party the exclusive right to decide between arbitration or litigation as the forum to resolve a dispute. Treatment of these clauses varies significantly between jurisdictions.

Clifford Chance's 2024 Survey on unilateral option clauses covers 120 jurisdictions and can be downloaded here: Unilateral Option Clauses Survey 2024.