Arbitration Agreement Clause

A number of international arbitration forums make standard arbitration clauses available to the parties. For example, all arbitration proceedings must be conducted in accordance with the arbitration rules. These can be chosen by the arbitrators themselves, but it is preferable for the parties to indicate the rules to be used. A fundamental choice is between arbitration according to « institutional » rules and arbitration procedure according to ad hoc rules. In international arbitration proceedings, the prevailing practice is that statements are not admissible. But it is also true in international arbitration proceedings that written testimony is generally used instead of oral direct testimony and that such written statements are exchanged well in advance of the hearing on the merits. This procedure can go a long way to reduce the need for deposits. In domestic commercial arbitrations, limited statements by key witnesses can significantly shorten cross-examination and shorten hearing on the merits. For this reason, jams Comprehensive Arbitration Rule 17(a) provides that each party may make a statement from another party and request additional statements if deemed necessary.

However, if not carefully controlled, statements in domestic arbitration proceedings can become extremely costly, time-consuming and time-consuming. The following language, in a dispute settlement clause of a national agreement, can allow the parties to enjoy the advantages of declarations while mastering them well: several reasons explain this preference for an institutional arbitration procedure. An institution can give political or moral weight to the awards. Since institutional rules are designed to fully regulate the procedure from start to finish, institutions are better able to consider contingencies, even if (as is sometimes the case) the defendant fails or refuses to cooperate. By incorporating the rules of an institution into the treaty, contracting parties also avoid the time and cost of developing an appropriate ad hoc clause. If the parties do not wish to negotiate before arbitration, but wish to do so before arbitration, they may do so by using the following language: the parties submit the following dispute from mediation, which is managed by the American Arbitration Association as part of its commercial mediation proceedings [the clause may also provide for the qualifications of the mediator(s); the method of allocation of fees and charges, the place of meetings, time limits or any other matter concerning the parties]. ICC Arbitration can be used as a forum for the final decision of a dispute after an attempt to resolve it by other means such as mediation. Parties wishing to include in their contracts a staggered dispute resolution clause combining ICC arbitration procedure and ICC mediation should refer to the ICC Model Rules of Mediation. The jurisdiction of arbitration is one of the most important of them. This is called the « seat » of arbitration and is a legal concept that links arbitration to a judicial jurisdiction. Normally expressed in the city, the key aspect is the jurisdiction in which the seat is located, as it is the procedural law of that court that governs the arbitration.

The right to a seat (and thus to the choice of procedural law) is decisive because it can have an impact on this point: a « winning party » clause such as the following tends to discourage claims, counter-claims and defences lightly, as well as the discovery of scorched earth in arbitration proceedings: different approaches may be taken for arbitration proceedings. Traditionally, they are classified as common law and civil approaches (although this is a generalization). A good understanding of the differences is important for two reasons. First, the expectations of the parties (or those of their advisers) may in part stem from their familiarity with the procedural rules of the courts of their own jurisdiction and, therefore, they may prefer to take a similar approach when requesting specific procedural instructions from the Tribunal. . . .