Specific written approval of onerous terms, among them the arbitration clause, is a requirement for such terms to be enforceable against the adhering party, with the consequence that only the latter has standing to rely upon its absence, and the nullity of a clause lacking specific written approval cannot be invoked by the party who drafted the terms.
A counterclaim brought by a defendant before the ordinary court at the same time as he raises, as his principal defence, the objection based on the referral of the dispute to arbitrators must be regarded as necessarily brought in the alternative, in the event that the objection is not upheld, the acceptance of that objection precluding the examination of both the claimant’s claim and the counterclaim.