Common use of Differences Clause in Contracts

Differences. 60 Difference means dispute.141 There is, however, no uniform view as to the exact meaning of this term. While a (correct) view deems the difference criterion essentially meaningless,142 some common law courts have denied the existence of a difference if both the facts and the law are undisputed between the parties and the sole reason for court proceedings is to pave the way to enforcement. Consequently, these courts have refused to apply Article II(3), reasoning that state court litigation is faster and cheaper absent any dispute (including any dispute about the scope of the arbitration agreement143).144 This view leads to the remarkable result that cases in which the arbitration agreement undisputedly covers the claim end up in litigation while an objection against the arbitration agreement’s interpretation may 138 Dissenting (autonomous interpretation) ▇▇▇▇, SchiedsVZ 2011, 289, 291 with incorrect reference to ▇▇▇▇▇▇▇▇▇, in: Mu¨nchKommZPO, annex to sect. 1061, NYC, Art. I para. 2. 139 Cf. ▇▇▇▇▇▇, para. 3961. 140 Austria: OGH, X Y.B. Com. Arb. 418, 419 et seq. paras 5 et seq. (1985); see also Italy: Cass., XI Y.B. Com. Arb. 519 para. 2 (1986); ▇▇▇▇▇▇▇▇, Art. II para. 3; ▇▇▇▇, in: ▇▇▇▇▇▇▇ (ed.), Part 3, Art. II para. 16. 141 ▇▇▇ ▇▇▇ ▇▇▇▇, p. 147. 142 ▇▇▇▇, in: ▇▇▇▇▇▇▇ (ed.), Part 3, Art. II para. 18. 143 UK: Al-Naimi v. Islamic Press Agency Inc., [1999] CLC 212, 214.