Originally from World Arbitration And Mediation Review (WAMR)

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GOODBYE BOILER‐PLATE: PRACTICAL ADVICE FOR DRAFTERS OF DOMESTIC AND INTERNATIONAL ARBITRATION AGREEMENTS

Pamela Fulmer* Noel Rodriguez** M. Anderson Berry***

I. INTRODUCTION Parties agree to arbitrate disputes because, among other things, arbitration can be quicker and more flexible than judicial proceedings. This leads to advantages that all parties desire: decreased costs and better predictability of outcome. However, problems arise in domestic and international arbitrations that may defeat these advantages. As explained below, well thought‐out and effective arbitration provisions can significantly reduce the incidence of these problems. While primarily relying on specific examples from the domestic sphere, the following discussion also app
lies to the international sphere unless otherwise indicated. The core assertion of this article is this: instead of cutting and pasting boiler‐plate arbitration clauses into contracts, one should identify in advance as many details as possible, including, inter alia: (A) the scope of the arbitral agreement; (B) decisions as to substantive and procedural choice‐of‐law; (C) the chosen institutional rules and the administering institution; (D) the location of the arbitration and the venue for confirmation of the award; (E) whether significant access to facts will be needed to establish claims; (F) available remedies, fees and expenses; and (G) limitations of grounds for vacatur.1