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.