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This book, by a leading international arbitration practitioner, offers suggested language for every option that a drafter of an international arbitration clause may need.
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This book, by a leading international arbitration practitioner, offers suggested language for every option that a drafter of an international arbitration clause may need.
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This Chapter addresses the special considerations that arise when either mainland China is to be the place of arbitration, or enforcement in mainland China is foreseeable.
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A “choice of law” clause is in practice understood to be a clause that designates the substantive law governing the parties’ contractual rights and obligations, and this Chapter offers drafting suggestions for choice of law clauses.
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“Place of arbitration” as used herein refers to the formal situs or “seat” of the arbitration, that is, the place where the arbitration is considered held from a legal point of view. The place of arbitration is usually the place where the hearings take place, but it need not be.
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Six criteria should be considered in choosing among international arbitral institutions.
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Administered, or “institutional,” arbitration means arbitration conducted under the rules of an arbitral institution (such as the ICC), where the parties pay the institution to assist, in accordance with its rules, in the initiation of the arbitration and in the constitution of the arbitral tribunal, to intervene as appropriate before the arbitrators are selected (and occasionally after), and to assist throughout the process with matters suchas payments, notice, mailings, and arranging for hearing facilities.
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The U.S. Supreme Court has stated that, when parties choose arbitration over litigation, they “trade . . . the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.”
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When parties to multiple, related contracts want to provide for consolidation of not-yet-arisen related disputes, three main complexities arise.
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Many international contracts provide for submission of disputes to a third party, an expert, who is chosen for his or her expertise in the area.
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There are five practical difficulties inherent in drafting arbitration clauses in multi-party contracts where multiple parties do not have aligned interests.
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The basic rule of drafting arbitration clauses is to begin with a model or standard clause. Parties can add to the model and standard clauses, but should rarely subtract from or change them.
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Both negotiation and mediation are consensual, rather than adversarial, and produce a resolution only if both parties agree thereto.
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This Chapter presents drafting suggestions for contracts with sovereigns. Section 1 presents clauses that address ICSID jurisdictional issues. Section 2 presents clauses that provide for alternatives to ICSID: the ICSID Additional Facility, the UNCITRAL Rules, and the Permanent Court of Arbitration. Section 3 suggests sovereign immunity waiver clauses inrelation to the enforcement of arbitral awards.
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