It is common for a contractual clause to require one or more arbitrators to possess certain specific qualifications. When drafting such a provision, care should be taken to ensure that these required qualifications are not too detailed and specific, as a very detailed list of qualifications required can significantly limit the number of available, competent and qualified arbitrators. In some cases, the parties may wish to include in their dispute settlement clauses language that is not as comprehensive as that proposed in Rules 16.1 and 16.2, but that facilitates the efficient conduct of arbitration proceedings under the Agreement. Examples of such efficiency improvement clauses are given below. Any dispute arising out of or in connection with this Agreement shall be finally settled in accordance with the Arbitration Rules of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such Rules. If the parties do not wish to negotiate before the arbitration, but wish to mediate before engaging in arbitration, they can do so using the following language: Other combinations of services are also possible. For example, arbitration can be used as a recourse to expertise or dispute resolution bodies. Parties using ICC arbitration may also provide for recourse to the ICC International Centre for Alternative Dispute Resolution to obtain an expert`s proposal if an expert opinion is required during the arbitration. In keeping with the informal nature of arbitration, the law in England and Wales generally seeks to maintain the validity of arbitration clauses, even if they do not have the normal formal language associated with legal contracts. The clauses that have been maintained include: To incorporate the appeal described above into arbitration, the dispute resolution clause of a commercial contract must only state the following: Binding arbitration clauses are widely used in the United States, but not universal. For example, they are used by Amazon.com, 15 of the 20 largest U.S. credit card issuers and 7 of the 8 largest mobile phone companies, as well as 2 of the 3 largest bike sharing companies in Seattle. [4] In arbitration, “adverse” claims may result in significant delays and unreasonably extend the investigation period.
Such claims are usually based on lengthy pleadings and factual submissions and are usually dismissed after a long period of time and cost on the grounds that they raise questions of fact and are inconsistent with the spirit of arbitration. On the other hand, dispositive claims can sometimes increase the effectiveness of arbitration if they are directed to separate legal issues such as limitation periods or defenses based on clear contractual provisions. In such circumstances, an appropriately formulated device movement can eliminate the need for costly and time-consuming discovery. The issue of dispositive claims can be effectively addressed in the dispute settlement clause by including the following wording: Rule 26 of the JAMS Arbitration Rules provides that JAMS and the arbitrator(s) must maintain the confidentiality of the arbitration. If it is desired that the parties also maintain the confidentiality of the proceedings, this can be done in the following language: the model clause can be amended to take into account the requirements of national laws and any other specific requirements of the parties. In particular, the parties should always request binding arbitration. For example, for parties wishing to have ICC arbitration in mainland China, it is advisable to include in their arbitration clause an explicit reference to the ICC International Court of Arbitration. The parties hereby submit the following dispute to mediation administered 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 apportionment of fees and expenses, the location of meetings, time limits, or other concerns for the parties]. If the arbitration is to be conducted by a single arbitrator, the contractual clause may stipulate that the arbitrator must be: The following time limits apply to any arbitration arising out of or in connection with this Agreement: When adapting the clause, care must be taken to avoid any risk of ambiguity. The unclear wording of the clause creates uncertainty and delays and can hinder or even impede the dispute resolution process. JAMS offers standard dispute resolution clauses that can be inserted into a contract before a dispute arises.
These standard dispute resolution clauses are set out and, in some cases, briefly discussed internally. It is customary for each party to appoint an arbitrator and for the two arbitrators appointed by the party to subsequently appoint the chair of the panel. Rule 7(c) of the Jams Full Arbitration Rules and Procedures (“JAMS Arbitration Rules”) requires that arbitrators appointed by the party be “neutral and independent of the party appointing them, unless the parties have agreed that they are not neutral”. Below is a clause that effectively provides for arbitrators appointed by the party: An arbitration clause is a clause in a contract that requires the parties to resolve their disputes through arbitration. While such a clause may or may not stipulate that arbitration takes place in a particular jurisdiction, it still binds the parties to a certain type of decision outside the courts and is therefore considered a type of jurisdiction selection clause. It is also known as the “Scott v Avery Clause”. It is common for a contractual clause to provide for negotiation and/or mediation prior to arbitration. These clauses are the most cost-effective way to resolve a dispute, as they often lead to early resolution. However, if such clauses are not carefully worded, they can also have negative side effects, as they can be a vector of delays and can lead to necessary but empty negotiations where one or all of the parties do not intend to move towards an agreement.
According to JAMS` experience, these disadvantages can be significantly minimized by setting strict deadlines that mark the early end of negotiation and mediation periods. ICC arbitration can be used as a forum for the final decision of a dispute after an attempt to resolve it through other means such as mediation. Parties wishing to include in their contracts a multi-level dispute resolution clause combining ICC arbitration and ICC mediation should refer to the MODEL CLAUSES of the ICC Mediation Rules. If the parties wish the upper limit of application of the Expedited Rules to be higher than that set out in these Rules of Procedure, the following wording should be added to the previous clause: If ICC arbitration is chosen as the preferred method of dispute settlement, this should be decided when negotiating contracts, separate contracts or arbitration agreements. However, if both parties agree, this can be resumed even after a dispute. If a dispute arises out of or relates to this Agreement, or relates to it, and if the dispute cannot be resolved by negotiation, the parties first agree to make a good faith attempt to resolve the dispute through mediation administered by the American Arbitration Association as part of its commercial mediation proceedings: before resorting to arbitration, litigation or any other dispute settlement mechanism […].