Employing equitable estoppel Sample Clauses

Employing equitable estoppel. Regardless of the fact that a relatively clear conclusion may be drawn based on the factors discussed above, additional support is presented in the form of the doctrine of equitable estoppel, in one form or another. The essence of this doctrine may be found in the principle of venire contra factum proprium327 – no one may set himself in contradiction to his own previous conduct. As discussed above in Chapter 4.4.5, the underlying fundamental conception is that a party may not act inconsistently with his own conduct, which in practice means that a third party beneficiary may not choose to accept one provision of an agreement and choose not to touch the rest. Therefore, in case the right granted to it is subject to certain conditions, these conditions are not elective. 326 There are differing views to the question of burden of proof. For example, the Dutch Supreme Court stated in its decision in 2006 that subjecting the non-signatory to arbitration requires that “the will of the non-signatory to adhere to the arbitration agreement was clear and expressed without doubt”, see Hoge Raad (Civil Chamber) 20 January 2006, NJ 2006/77, JOL 2006, 40, RVDW 2006, p. 109, cited in Xxx xxx Xxxx 2007, p. 352. However, while agreeing that binding a non-signatory cannot happen lightly, the author disagrees with such construction of burden of proof which disregards valid and justifiable presumptions concerning arbitration agreements and therefore unnecessarily and to the detriment of the signatory hampers the true purpose of the parties by setting needlessly steep requirements of evidence, such as “without doubt”. 327 See Born 2009, p. 1194 Diligently employed especially in the United States, the doctrine of equitable estoppel has found its place in binding non-signatories to arbitration. For instance, in Hughes Masonry Co v. Greater Clark County School Building Corp., the court stated that “it would have been "manifestly inequitable" to allow the contractor both to claim that the manager was liable for a failure to perform under the terms of the contract, and at the same time to deny that the manager was a party to the contract in order to avoid arbitration.”328 (emphasis added) Incidentally, the non-signatory in KKO 2013:84 asserted that the signatory was liable for a failure to perform under the terms of the contract, and at the same time denied that the non- signatory itself was a party to the contract in order to avoid arbitration. Various other cases in the United Stat...