The topic addressed in this contribution is well illustrated by a recent case:1 two parties enter into a contract, which they wish to keep highly confidential, so they execute a single copy of the agreement that they then entrust to a third party escrow agent. The parties have provided for two different arbitration clauses—one clause requiring ad hoc arbitration in the event of a dispute arising from their contractual relations, and the other providing for ICC arbitration with the third party escrow agent.
The escrow agreement provides that the escrow agent must deliver the original agreement under certain terms, specifically so as to enable the party so requesting to provide the original agreement to the ad hoc arbitrators should the prima facie existence of an arbitration agreement need to be established.
A dispute arises between the parties. The escrow agent refuses to hand over the original agreement. One of the parties initiates an ad hoc arbitration against both the other party and the escrow agent. Simultaneously, the Claimant initiates arbitration proceedings against the escrow agent before the ICC.