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A company that entered with a bank into an FX options contract, which contained an arbitration clause, brought a case to the common court for declaration that specific FX options transactions executed between the parties are invalid. The bank has raised the plea of existence of an arbitration agreement, moving for rejection of the statement of claim. This motion was dismissed by the court of first instance. By examination of the appeal of the defendant bank, the appellate court called into question the possibility of subjecting this type of dispute to arbitration.

The Supreme Court, providing an affirmative answer to the question presented by the appellate court, emphasized above all that a dispute’s settlement capacity (which is a condition of arbitrability) should be assessed abstractedly, in detachment from any particular circumstances and legal conditions, as well as from deliberations, whether a possible settlement entered into by the parties would be possible in the light of the provisions of law in force. Moreover, in the opinion of the Supreme Court, it is not material whether the issue of defectiveness of a legal act creating, transforming or frustrating a particular legal relationship can be the object of the court’s settlement, but what is important is whether the legal relationship, to which such legal act pertains, is at the disposal of the parties, and therefore, whether in the context of this legal relationship it is possible to enter into a settlement.

Therefore, in the opinion of the Supreme Court, in connection with the fact that an FX option contract is fully at the disposal of the parties and the parties may decide whether the option relation arises, whether its content is changed or whether it is ceased, thus abstractedly speaking, this relationship may be subject to a court settlement. This in turn means that the dispute for declaration of existence or non-existence may be subjected to arbitration.

Summary of the resolution together with justification.

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