Philip D. O'Neill, Jr. is a partner in the international practice group in the Boston and New York offices at Edwards Angell Palmer & Dodge LLP. His practice mainly involves cross-border business disputes. In addition, he frequently sits as an arbitrator. He has been an adjunct professor of international arbitration at Boston College Law School since 1989, and was Nomura Lecturer in Law on International Arbitration at Harvard Law School in 2005.
In the United States, as in many other countries, the parties to a commercial contract are largely free to fashion their dispute resolution agreements as they see fit. This recognition of “party autonomy” is one of the principal characteristics that makes arbitration, particularly for cross-border disputes, so attractive. It allows parties to determine at the outset of their commercial relationship the dispute resolution processes they will use, a suitable forum where any future disputes will be heard, and the procedures uniquely fitted to their needs. During the negotiation of the dispute resolution clause, the parties have an opportunity to take control of that process—an opportunity that many parties frequently ignore, only to later face the consequences. However, parties who try to take a control of their dispute resolution clauses often leave open issues or fail to draft the clause with sufficient precision, which also creates jurisdictional problems later on.