Myron Phua, ‘“Repudiating” an arbitration agreement by suing elsewhere’

“The existing law on when a party to an arbitration agreement ‘repudiates’ it by bringing claims falling within its scope in a forum other than arbitration is analytically unsatisfactory. Courts, applying the analysis in The Mercanaut, have held that such an act would not ipso facto amount to a ‘repudiation’ or repudiatory breach of an arbitration agreement. The explanation given is that such an act need not clearly evince that the suing party wishes ‘not to be bound by the arbitration agreement’. As long as the suing party has ‘some explanation’ for bringing the court proceedings or has otherwise indicated that it remains willing to ‘continue with the arbitration’, it may bring proceedings elsewhere without committing a ‘repudiation’ or repudiatory breach of the arbitration agreement. This article challenges the status quo. It argues that the prevailing position ought to be re-examined against three basic propositions of contract and arbitration law …”

Myron Phua, ‘“Repudiating” an arbitration agreement by suing elsewhere’ (2022) 138 Law Quarterly Review (Jan) 131-153.

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