Originally from Arbitration Clauses for International Contracts - Second Edition

Preview Page

DRAFTING AN EFFECTIVE ARBITRATION AGREEMENT

The contract drafting stage is the right time – and in most instances the only time – to be activist in designing the dispute resolution process. Inattention to drafting a dispute resolution clause squanders the opportunity to exert party control over the process. Inattention to drafting also squanders the opportunity to enhance the predictability of the process. An astonishing number of dispute resolution clauses in international contracts are inadequate or defective because the drafters fail to begin the drafting process by consulting and using readily available model or standard forms. Given the widespread availability of model and standard clauses tested at law and refined by experience, there can be no excuse for clauses that botch even the few elements necessary to an effective dispute resolution clause.143

There are just as many dispute resolution clauses that suffer because the drafters do nothing but borrow minimalist language, without considering the range of options available to contracting parties. This does not mean that arbitration clauses should usually include optional provisions that supplement the essential language needed for enforceability. The opposite is true: in most situations, the arbitration clause should be basic; add-ons often give rise to nothing but additional questions. Parties to an arbitration agreement nevertheless can effectively provide, and should at least consider providing, for example: