Bulkbuild argued that the agreement “could not be executed” for the purposes of Section 8. Bulkbuild`s complaint against Fortuna arose from substantive issues similar to those of its complaint against the second and third defendants in the same trial. As a result, Bulkbuild asserted that there was a risk of different facts if its action against Fortuna was determined by arbitration, but its claims against the other defendants were determined by a court. After much uncertainty, it is now a determined right that, if there is a challenge to the validity of the material contract between the parties, the arbitration clause survives such a challenge and arbitrators are free to determine the validity or not of the contract. It is only if the compromise clause is independently challenged that the court itself has the power to intervene. This is noted by Tomlinson J.A. in El Nasharty/J Sainsbury plc (No. 2)  EWHC 2618 (Comm), where the assertion that the main agreement is tainted by duress does not violate the compromise clause it contains, thus, under the 1996 Arbitration Act, the suspension of judicial proceedings on the burden of coercion is far from inevitable. Parties wishing to introduce asymmetric arbitration clauses are well advised to carefully consider the court`s approaches to these clauses in all relevant legal systems. It is important to consider the economic context of the transaction and determine what laws are likely to be.
Considering that an invalid arbitration agreement is grounds for resisting the execution of a sentence, two critical considerations are the validity at the arbitration headquarters and the applicable law of the agreement. However, the parties should also take into account the validity in jurisdictions where an arbitral award could be carried out and in all other jurisdictions where a party might attempt to violate the arbitration agreement (for example. B the original courts of the parties). Careful analysis in the design phase can reduce the risk of only discovering that the compromise clause is unenforceable in the event of litigation and when it is most necessary. The effect of an arbitration agreement applies independently and is not affected by the modification, dissolution, termination or nullity of a contract. An application for an injunction against the appeal to limit foreign proceedings in alleged violation of a compromise clause may require the English courts to rule on the validity or nullity of the compromise clause. Midgulf International Ltd /Group Chimice Tunisian  EWHC 963 (Comm) shows that, in such circumstances, the issue of jurisdiction is dealt with by the courts and not by arbitrators. Certainly, there is nothing in these principles outside the specific context of contracts with consumers that indicate that the parties can “cancel” their arbitration agreement because the right they have chosen to regulate their agreement does not recognize or include certain mandatory European rules or because the object of the dispute is not arbitration.