Under the WIPO Arbitration Rules, the parties may jointly select a single arbitrator. If it opts for a three-member arbitral tribunal, each party shall appoint one of the arbitrators; these two persons then agree to the presiding arbitrator. Alternatively, the Center may propose potential arbitrators with relevant expertise or directly appoint members of the arbitral tribunal. The Center maintains a long list of arbitrators, ranging from experienced dispute resolution generalists to highly specialized practitioners and experts covering the entire legal and technical spectrum of intellectual property. Below, we outline the key issues to consider when drafting jurisdiction clauses and arbitration agreements, and provide some perfect examples of the most established courts and arbitration institutions in the world. A jurisdiction clause should be included if the parties wish all disputes arising from their agreement to be decided by one or more national courts. A party who expressly submits to the courts of a particular jurisdiction will find it difficult to assert that these courts are not the appropriate place for the negotiation of disputes. The court procedure allows all parties involved to be linked to a dispute so that all aspects can be resolved at a hearing. It also makes it possible to consolidate related measures, for example when. They all arise in relation to related contracts. Although arbitration institutions have revised their rules to allow for connection and consolidation, an arbitral tribunal does not have the power to order a third party that is not a party to the arbitration agreement to join the arbitration without the consent of that third party. This means that with several parties and several agreements, there is a risk of parallel proceedings and inconsistent outcomes.

Arrangements may be made for consolidation and consolidation in arbitration proceedings, but require careful consideration and prior elaboration. English legal proceedings are open to the public, except in the most exceptional circumstances (e.g. B official secrets), pleadings are available to the public (unless otherwise ordered by the court) and judgments are published. In comparison, arbitration hearings are held in camera, and documents produced and arbitral awards rendered are generally confidential. Trade secrets and « dirty laundry » do not need to be exposed in public – although in some disputes it may be advantageous to have the dispute in public, put pressure on the other party and set precedents for future business. If parties choose to arbitrate for privacy reasons, they are always well advised to ensure that an explicit confidentiality provision is included in the arbitration agreement or procedural order, as attitudes toward confidentiality vary by jurisdiction. When drafting the dispute settlement clause, it is first necessary to decide which forum to choose for the settlement of disputes arising from the agreement. There are several options and parties can choose either a forum or a combination of different forums. The common starting point is to decide whether court proceedings or arbitration are more appropriate. This requires an understanding of the advantages and disadvantages of the different forums, since in any case, the transaction is more suitable for one or the other.

Transactions often involve a series of documents. If this is the case, those drafting the contracts should take into account the general dispute resolution strategy. Is it consistent, especially in documents, where disputes should be resolved? While consistency is preferable, it will often not be possible. In these circumstances, caution should be exercised, as difficulties may arise when disputes arise under more than one contract. Specifically, the AAA has developed the ClauseBuilder® online tool – a simple and self-directed process – to help individuals and organizations develop clear and effective arbitration and mediation arrangements. Here are some examples of standard form (template) competence clauses. Words in square brackets may be modified according to the agreement of the parties. While these can serve as a useful starting point, the parties should seek legal advice to ensure that the clause they choose meets their needs and is consistent with all other provisions of the agreement. Risks can be minimized by thinking about the dispute resolution strategy in the transaction phase. In particular, think carefully about where disputes that touch the heart of the transaction should be heard.

This choice should then be included in the main treaties, which will help to ensure that disputes that may fall within the scope of several of the treaties are negotiated in this forum. Alternatively, and in particular where arbitration is requested, consideration should be given to drafting a framework agreement clearly defining where disputes relating to the core of the transaction should be heard. A distinction should be made between the applicable law clause and the dispute settlement clause. The first deals with substantive law governed by the agreement. The latter defines the framework within which the parties intend to settle any dispute arising from the agreement. Although these principles are different, they are often confusing and uncertainties arise when the applicable law and the choice of dispute settlement tribunal are dealt with in the same clause. As a good practice, they should be treated separately. Arbitration is a procedure in which a dispute (by agreement between the parties) is submitted to a tribunal (usually composed of one or three arbitrators chosen by the parties) which makes a binding decision on the dispute. In choosing arbitration, the parties opt for a private form of dispute resolution rather than submitting to the jurisdiction of a national court. The dispute settlement clause must be clear and unambiguous. The English courts will endeavour to implement the parties` agreement on how they intend to settle their disputes, but if such an agreement is unclear because the clause has been poorly worded, the parties may find themselves in a different forum than the one they have chosen. In the case of international contracts, it may be perceived as a disadvantage if a dispute is referred to the « court of origin » of a counterparty, particularly if the other party is a government agency.

Arbitration allows the parties to submit their disputes to a neutral forum. In addition, the consensual nature of arbitration means that the parties can ensure that the composition of the arbitral tribunal, as well as the seat of the arbitration and the place of a hearing, are neutral. As a categorization point, the term « dispute resolution clause » refers to the contractual provisions by which the parties determine how their disputes are to be resolved: these include arbitration, mediation, and reference to disputes by the courts (commonly referred to as the « jurisdiction clause »). Therefore, a jurisdiction clause is simply a different type of dispute resolution clause and should only be included if the parties wish a particular court (or tribunals) to decide a dispute. It should not be included if an alternative dispute resolution forum is preferred. If ICC arbitration is chosen as the preferred method of dispute resolution, this should be decided when negotiating separate contracts, contracts or arbitration agreements. However, if both parties agree, this can be resumed even after a dispute. « Any dispute arising out of or relating to this Agreement, including any matter relating to its existence, validity or termination, shall be submitted and finally resolved by arbitration in accordance with the DIFC-LCIA Arbitration Center ARBITRATION Rules, the rules of which shall apply by reference to this clause.

Arbitration may take place only if both parties have consented to it. In the event of future disputes arising from a contract, the parties will include an arbitration clause in the respective contract. An existing dispute may be submitted to arbitration through a submission agreement between the parties. Unlike mediation, a party cannot unilaterally withdraw from arbitration. The term « split » or « hybrid » encompasses a variety of hybrid dispute resolution clauses, the most common of which is a clause that provides for both jurisdiction and arbitration in conjunction with a mechanism that gives one or both parties the right to determine the procedure as soon as a dispute arises. Such clauses are typically used when a party has a superior bargaining position, with the stronger party using the clause to optimize its position in a particular dispute. For example, the clause would provide for disputes to be settled in the English High Court, but Party A may also choose to have the dispute in question arbitrated. Such clauses are increasingly appearing in financing contracts, particularly in international derivatives and credit transactions with counterparties in jurisdictions where decisions of English courts may not be easily enforceable. They have the obvious advantage that the strongest party can control where the proceedings are to be initiated, with the usual choice between arbitration or litigation. Caution should be exercised when considering such a clause.

Although valid under English law, other jurisdictions may take a different approach. In some jurisdictions, division clauses may be considered invalid because they do not provide a reasonable reference to arbitration (if only one party has the right to refer the matter to arbitration) or because they are unfair and contrary to public policy (as they strongly favour one party). If your contract contains a split clause, check the applicable law of the contract to make sure it recognizes its use and validity, and also review the law of a relevant jurisdiction, for example. B a court where the enforcement of a judgment or award could be sought. .