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Terry McMahon is an Associate in the firm’s New York office. He is an experienced litigator whose practice focuses on complex civil litigation, business litigation, and white-collar investigations. Terry has helped numerous companies, particularly in the financial, manufacturing, real estate, and technology sectors, develop and achieve business solutions to a variety of legal problems, including contract, fraud, and fiduciary duty issues. He has litigated at all stages of proceedings, from pre-complaint counseling through post-trial briefing.

In an earlier post we provided advice on how to interpret the words “may” and “must” when they appear in arbitration clauses that are to be interpreted under U.S. law. Among other things, we explained that an arbitration clause that says that a party “may” submit a dispute to binding arbitration will be viewed as mandatory in U.S. courts if any party chooses to arbitrate.

That post led us to question whether those “may” and “must” words are interpreted consistently in other English-speaking common law countries. In typical litigator fashion, and for the reasons set forth below, we conclude that it depends.  The relevant laws of Canada, England, and Singapore are apparently consistent with that in the United States, while those of India and Australia are not.

Continue Reading Mandatory vs. Permissive Arbitration Clauses: A Survey of the Laws of Other Common Law Countries