In a UK case, the contract included a provision that “the parties will endeavour to first resolve the matter through Swiss arbitration. Should a resolution not be forthcoming the courts of England will have non-exclusive jurisdiction”. It was held that this is not an arbitration agreement.
The parties did not specifically agree to refer the dispute to arbitration but agreed to “endeavour” to resolve the matter through Swiss arbitration. An endeavour to resolve a matter through arbitration is different from an agreement to refer a dispute to arbitration, particularly when nothing certain is said about how the arbitration tribunal is to be appointed.
The court refused to stay court proceedings in England to enable the defendant to refer the matter to arbitration in Switzerland.
Arbitration clauses must specifically agree to refer disputes to an ascertainable arbitration process, the outcome of which is binding on the parties.