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Vol 23 No 5 May/June 2018

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Arbitration Clauses for International Contracts 2nd ed

ISBN13: 9781933833064
Published: July 2007
Publisher: Juris Publishing
Country of Publication: USA
Format: Hardback
Price: £145.00

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This book, by a leading international arbitration practitioner, offers suggested language for every option that a drafter of an international arbitration may need. Following a succinct assessment of the choice between arbitration and litigation and commentary on the choices among arbitration fora and formats, the author presents an accessible how-to for drafting. While other works offer theory and a smattering of drafting tips, there is no other comprehensive collection of workable language, presented accessibly with easy-to-reference appendices. This book will be a regular reference for both in-house counsel and outside practitioners.

This book provides, in an accessible format, clauses that address all the significant issues that contracting parties face, and in any event should consider, when they decide to draft a dispute resolution clause for an international contract. Those who wish immediate access to suggested language may turn directly to the Appendices. Those who wish to understand the analysis that leads to the suggested language should read the text.

Chapter 1 discusses model and standard clauses for both institutional and non-administered (Ad-Hoc) arbitration.

Chapters 2 through 5 discuss the threshold issues faced by parties when they consider providing for a dispute resolution method in their international contract. First, should the contract provide for arbitration (by means of an arbitration clause) or litigation (by means of a consent to the jurisdiction of a designated forum)? Second, if arbitration is selected, should it be administered by an institution or non-administered (ad hoc)? Third, if institutional arbitration is selected, which institution? Fourth, how should the place of arbitration be chosen and what are the implications of the choice?

Chapter 6 is a "how-to" discussion of drafting arbitration clauses, and comprises the largest section of this book. It divides the elements of an arbitration clause among three categories: essential elements; recommended elements; and optional elements. For each element, Chapter 5 offers in the text examples of workable contract language, and an explanation of alternatives. For ease of reference, the Appendices set out these same recommended clauses.

Chapter 7 discusses the utility of providing for negotiation or mediation as a mandatory first step before resort to arbitration or litigation in international contracts, and suggests language that provides for such a first step without pitfalls.

Chapters 8 through 12 address special situations that may alter the considerations that lead to the selection or rejection of the clauses discussed in Chapter 6. Chapter 8 deals with joinder and intervention clauses for multi-party contracts. Chapter 9 discusses consolidation clauses for related contracts. Chapter 10 addresses expert determination clauses and dispute boards. Chapter 11 analyzes the special issues presented by arbitration clauses in contracts with sovereigns. Chapter 12 concentrates on Chinese arbitration law and contacts.

Chapter 13 addresses choice of law clauses, a subject distinct from dispute resolution per se but one that nevertheless should be addressed in any international contract.

New to the Second Editon:

  • More decisive recommendations of clauses. The first edition included some clauses whose language the author considers workable, but which he did not in fact recommend. Some readers have taken as recommended all clauses referenced. The new edition makes clear which clauses are recommended, and eliminated entirely several clauses set out in the first edition.

  • Expert determination and dispute boards. This second edition adds a chapter on clauses providing for expert referral, a practice increasingly used in construction contracts and share purchase agreements.

  • China. This second edition introduces a chapter dealing with the special drafting considerations that arise when mainland China is either the place of arbitration or the place of possible enforcement of an arbitral award.

  • Sovereign contracts. This chapter is much revised. The author has expanded the discussion of ICSID arbitration clauses and added a section on the vexing issue of assignment of ICSID arbitration agreements. The author has excluded discussion of arbitration agreements involving NGOs.

  • Increased reference to Latin America law and practice. During the years since the first edition of this book, Latin America has moved to the center of the international arbitration world. In this edition, references to U.S. and European laws have been retained (and updated), but they are no longer the sole references.

International Trade, Arbitration and Dispute Resolution
Table of Contents
Preface to Revised Second Edition
Preface to First Edition
Chapter 1: Model and Standard Clauses
(1) Model and Standard Clauses for Institutional Arbitration
(2) Model and Standard Clauses for Non-Administered (Ad Hoc) Arbitration
Chapter 2: Choosing Between Arbitration and Litigation
(1) Speed and Cost
(2) Neutrality, Availability, Familiarity/Flexibility and Enforceability
(3) Anticipating the Outcome
(a) Arbitrators versus Judges and Juries
(b) Limitations upon Appeals
(c) The Risk of Compromise Awards
(4) Process
(a) Privacy/Confidentiality
(b) Consolidation
(c) Summary Procedures
(d) Presentation of Evidence
(e) Document Production
(5) Summary of Reasons to Choose Arbitration or Litigation
Chapter 3: Choosing Between Administered and Non-Administered Arbitration
(1) The Utility of Incorporating a Set of Rules
(2) Support Services
(3) Flexibility
(4) The Risk of Obstruction
(5) Enforceability
(6) Cost
(7) Existing Disputes
Chapter 4: Choosing an Arbitral Institution
(1) Why it Matters
(a) Institutional Rules
(b) Arbitrator Appointments
(c) Administrators
(d) Reputation and Enforceability
(e) Cost
(f) Place of Arbitration
(2) The Choices
Chapter 5: Choosing a Place of Arbitration
(1) Why it Matters
(a) Enforceability
(b) Judicial Interference and Support
(c) Visas, work permits and right to use foreign counsel
(d) Relative Convenience and Expense
(e) Selection of the Arbitrators
(2) What Happens When the Parties Fail to Choose
(3) How to Identify a Suitable Place of Arbitration
Chapter 6: Drafting an Effective Arbitration Agreement
(1) The Need for Consent
(2) The Need for an Agreement in Writing
(3) Model and Standard Clauses as a Guide
(4) Necessary Elements
(a) Scope
(b) Designated Dispute Resolution Method
(c) Exclusivity
(5) Recommended Elements
(a) Place of Arbitration
(b) Method of Selection and Number of Arbitrators
(c) Language
(6) Optional Elements: Process
(a) Arbitrator Qualifications
(b) Provisional Measures
(c) Confidentiality
(d) Document Disclosure
(e) Disposition of Issues
(f) Presentation of Evidence
(g) Time Limits and Fast-Tracking
(h) Governing Arbitration Law
(i) Arbitral Jurisdiction to Decide Arbitral Jurisdiction
(j) Tribunal-appointed Experts
(k) Amicus Participation
(l) Specifying the Current or Updated Rules
(7) Optional Elements: Award
(a) Allocation of Costs and Fees
(b) Interest
(c) Punitive Damages
(d) Currency of Award
(e) Offsets
(8) Optional Elements: Judicial Role
(a) Entry of Judgment
(b) Judicial Review: Limited
(c) Judicial Review: Expanded
(d) Designating a Judicial Forum for Enforcement of the Arbitration Agreement
(9) Optional Elements: Other
(a) Affiliates
(b) Assignment
(c) Contractual Limitations Periods
(10) Submission Agreements for Existing Disputes
(11) Alternative Clauses
(a) Sole Option (Asymmetrical) Clauses
(b) Complementary Arbitration and Litigation
(c) Baseball Arbitration
Chapter 7: Negotiation or Mediation as a First Step Before Arbitration
(1) The Utility of Negotiation or Mediation as a Mandatory First Step
(2) Drafting Tips
(3) Recommended Clauses for Negotiation or Mediation as a First Step
Chapter 8: Joinder and Intervention Clauses for Multi-Party Contracts
(1) Challenges
(2) Solutions
Chapter 9: Consolidation Clauses for Related Contracts
(1) Stand-Alone Consolidation Protocol
(2) Consolidation Clause
(3) Fallback Option
Chapter 10: Expert Determination and Dispute Boards
(1) Standard or Institutional Expert Determination Clauses
(b) World Bank
(c) ICC
(d) Ad Hoc Expert Determination Clauses
Chapter 11: Sovereign Contracts
(1) ICSID Arbitration Clauses
(a) ICSID Model Clause
(b) Jurisdictional Issues
(c) Venue
(d) Confidentiality
(e) Fallback Provision
(f) Assignment of ICSID Arbitration Agreements
(2) Alternatives to ICSID Arbitration for Sovereign Contracts
(a) UNCITRAL Arbitration
(b) ICSID Additional Facility
(c) Permanent Court of Arbitration
(3) Waiving Immunity as to Enforcement
Chapter 12: China Contracts
(1) Overview for Chinese Arbitration Law
(2) Drafting Tips for "Domestic" or "Foreign Related" Contracts
(3) Note on Model ICC China Clause
(4) Recommended Clause for Arbitration Outside China
(5) Recommended Clause for CIETAC Arbitration
Chapter 13: Choice of Law Clauses
(1) Choice of Substantive Law in Relation to Choice of Dispute Resolution Method
(2) Suggested Choice of Law Clauses
(3) Lex mercatoria
ex aequo et bono
amiable composition
(4) Convention on the International Sale of Goods
Appendix 1 Model and Standard Clauses for Institutional Arbitration
Appendix 2 Model and Standard Clauses for Non-Administered (Ad Hoc) Arbitration
Appendix 3 Affiliates
Appendix 4 Amicus Participation
Appendix 5 Arbitral Jurisdiction To Decide Arbitral Jurisdiction
Appendix 6 Arbitrators, Method of Selection and Number
Appendix 7 Arbitrators, Qualifications
Appendix 8 Assignment of ICSID Arbitration Agreements
Appendix 9 Baseball Arbitration Clause
Appendix 10 China Contracts
Appendix 11 Choice of Arbitration Law
Appendix 12 Choice of Substantive Law
Appendix 13 Complementary Arbitration and Litigation Clauses
Appendix 14 Confidentiality
Appendix 15 Consolidation
Appendix 16 Costs and Fees
Appendix 17 Currency of Award
Appendix 18 Document Disclosure
Appendix 19 Dispositive Applications
Appendix 20 Entry of Judgment
Appendix 21 Expert Referral Clauses
Appendix 22 ICSID Clauses
Appendix 23 Interest
Appendix 24 Judicial Forum for Enforcement of Arbitration Agreement
Appendix 25 Judicial Review, Exclusive
Appendix 26 Judicial Review, Expanded
Appendix 27 Language
Appendix 28 Limitations Periods
Appendix 29 Mediation as a First Step
Appendix 30 Multi-Party Contracts
Appendix 31 Narrow Scope
Appendix 32 Negotiation as a First Step
Appendix 33 Negotiation and Mediation as Two Steps in a Three-Step Clause
Appendix 34 Offsets
Appendix 35 Place of Arbitration
Appendix 36 Presentation of Evidence
Appendix 37 Provisional Measures
Appendix 38 Punitive Damages
Appendix 39 Sole Option Clauses
Appendix 40 Sovereign Contracts
Appendix 41 Specifying the Current or Updated Rules
Appendix 42 Submission Agreements for Existing Disputes
Appendix 43 Time Limits and Fast-Tracking
Appendix 44 Tribunal-appointed Experts
Appendix 45 U.S. Contracts
Table of Cases