Drafting Arbitration Clauses Before and After a Dispute - Chapter 1 - Soft Law in International Arbitration - Second Edition

Author(s):

Damien Nyer

Allyson Reynolds

Page Count:

5 pages

Published:

June, 2024

Jurisdictions:

International

Practice Areas:

Agreement to Arbitrate,

Standard and Model Arbitration Clauses,

Contents of Arbitration Agreement,

Operation and Effects,

Sources of Arbitration Law

Author Detail:

DAMIEN NYER is a disputes partner at White & Case based in New York. He is the head of the firm's International Arbitration Section in the Americas; and he also leads its Canada Country Practice. Mr. Nyer has acted as counsel and arbitrator in more than 50 commercial, construction and investment arbitrations across the world and under all major sets of rules (ICSID, ICC, AAA/ICDR, LCIA and SIAC), as well as in ad hoc proceedings (including UNCITRAL), subject to a variety of applicable substantive laws and involving well in excess of US$ 12 billion in dispute. A past Co-Chair of Young ICCA (International Council for Commercial Arbitration) and Secretary of the International Bar Association's Taskforce on International Arbitration Agreements, he is ranked as a leading international arbitration practitioner in the United States by Chambers & Partners (Chambers USA) and has been recognized as a rising star in the field by Who’s Who Legal and Global Arbitration Review (“Future Leader”), Benchmark Litigation (“under 40 Hot List”), and the Legal 500 ("Next Generation Partner").

ALLYSON REYNOLDS is a litigation associate at an international law firm in New York City. Her practice focuses on commercial disputes, white collar compliance, and data privacy matters. She maintains an active pro bono practice devoted to international human rights issues and has past experience working with various international organizations and NGOs, such as the International Criminal Court. She currently serves on the New York City Bar Association’s International Human Rights Committee and Business & Human Rights Working Group. Prior to joining the legal profession, she worked in the education reform space and taught mathematics in Newark, New Jersey. Ms. Reynolds earned a J.D. from the University of Pennsylvania Law School and a B.A. in International Studies from Emory University.

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Description:

Originally from Soft Law in International Arbitration, Second Edition

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The agreement to arbitrate – whether in the form of a pre-dispute arbitration clause in a contract or an ad hoc submission agreement entered into after a dispute has arisen – is the cornerstone of the arbitration proceedings. Well-drafted, the arbitration clause will allow the parties to realize the full benefits of arbitration over court litigation: lower costs, greater efficiency and speed, and the ability to choose adjudicators with the appropriate expertise to resolve specialized disputes. Poorly drafted, an agreement to arbitrate may be altogether unenforceable. And even if it is not, the poorly drafted arbitration clause will invite preliminary disagreements over its meaning and scope, and risks increasing the time and cost of resolving the dispute.

The importance of the agreement to arbitrate is immediately obvious to arbitration practitioners. Yet, it is rarely these same practitioners who are in charge of drafting the contracts that give rise to disputes. Arbitration clauses are often treated by contract drafters as one of several boilerplate provisions that can be tacked at the back of an agreement at the last minute with little or no negotiation.