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.1
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 with little or no negotiation.