This article is written by Mayank Jain, pursuing Diploma in US Contract Drafting and Paralegal Studies from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).
The Committee within the International Bar Association (IBA) established task forces to address specific issues and one of the task forces developed IBA guidelines for drafting the international arbitration clause, which was adopted by the IBA Council on 7th October 2010. These guidelines were issued to enact an effective arbitration clause that reflects the fulfilment of parties’ needs and expectations in the arbitration process and the purpose of these guidelines is to assist in-house counsel, arbitration specialists, and business lawyers (ordinarily work in contract drafting) in drafting international arbitration clauses effectively. These guidelines cover and solve all the complexity and problems that arise while drafting the international arbitration clause. In this article, we will be discussing in-depth various guidelines for drafting the international arbitration clause issued by IBA, which will help you to understand and draft the international arbitration clause effectively as per your or your client’s needs and expectations.
What is international arbitration?
International arbitration is an alternate dispute resolution method to resolve disputes between the parties without the intervention of courts, where the parties are from different states. International arbitration arises from the contract, where parties mutually decide to refer their disputes related to the present contract to the arbitration, as this contract takes place between two parties from two different states, so, under this contract, the arbitration is referred to as the international arbitration and the award passed by an international arbitration called as the foreign award. There are two Conventions i.e., New York Convention and Geneva Convention, many states and jurisdictions are members of any or both Conventions to enforce foreign awards in their states and jurisdictions, which safeguard the parties to enter into contracts with other parties from other states and it also motivates parties to make commercial agreements with other state’s parties.
Benefits of IBA Guidelines
Today, most parties indicate an arbitration clause in their agreement and want to resolve their disputes through arbitration rather than approaching courts. As the arbitration clause is subject to agreement and parties can lay down their own procedure and rules for the arbitration in the arbitration clause, the clause must be effective and beneficial for both parties. But sometimes it does not happen, due to terrible drafted clauses which may cause additional challenges, cost and delay to the parties and either party may get an unethical advantage or escape from their obligations. So, IBA laid down the guidelines to protect the parties from bad and complex drafted arbitration clauses and to ensure they are effective and easy to use clauses, which reflect parties’ needs and wants. There are some more benefits of IBA guidelines herein mentioned below:
- Ensure an effective arbitration clause that considers parties’ needs and desires.
- Achieving an unambiguous arbitration clause that embodies parties’ wishes.
- Help to understand the best international practice in current situations.
- Explain essential elements of an arbitration clause and features of the process, which are open for the parties to determine in advance.
- Help the parties to understand what are the choices available and the pitfalls to avoid, in their arbitration clause.
- Help to tackle complex drafting issues like multiple parties, multiple dispute resolutions, etc.
- Provide a framework and detailed provisions for drafters of international arbitration clauses.
IBA Guidelines are divided into 5 parts as follows
- Basic Drafting Guidelines,
- Drafting Guidelines for Optional Elements,
- Drafting Guidelines for Multi-Tier Dispute Resolution Clauses,
- Drafting Guidelines for Multiparty Arbitration Clauses,
- Drafting Guidelines for Multi-Contract Arbitration Clauses.
Basic drafting guidelines
This part covers basic guidelines on what to do and what not to do, what to choose or what not to choose, what to add or what not to add in the clause.
- Guideline 1: The parties first should decide between institutional and ad hoc arbitration.
While drafting the clause, the parties should first choose what option they want to proceed with- either institutional arbitration or ad hoc arbitration.
- Institutional arbitration is an arbitral institution that provides administrative assistance to the parties while arbitration proceeding against for a fee. Administrative assistance like organising hearings, payments to the arbitrators, handling communications between parties, appointing arbitrator on default of parties, etc. elsewhere,
- Ad-hoc arbitration is arbitration in which proceeding is not administratively supported by the third party, parties to the arbitration entirely have to manage all the arrangements of the arbitration proceedings like the appointment of arbitrators or designate a neutral third party to select arbitrators (explained in guideline 6), set out the designation of rules (explained in guideline 2), set out the procedure of arbitration, etc.
2. Guideline 2: The parties should select a set of arbitration rules and use the model clause recommended for these arbitration rules as a starting point.
Parties often face issues in the selection of set arbitration rules while drafting arbitration clauses. The set arbitration rules provide the framework for arbitration proceedings for smooth functioning and in absence of set rules for arbitration proceedings may create issues in proceedings.
- In the case of institution arbitration, set rules for arbitration proceedings always agree with that institution of arbitration.
- In the case of ad hoc arbitration, parties can select set rules of arbitration developed by different institutions and authorities for ad hoc arbitration i.e., arbitration rules by the United Nations Commission on International Trade Law (‘UNCITRAL’).
- Once set arbitration rules are selected, the parties should use the module clause in the arbitration agreement or clause that is recommended by the same institute/ author/ authority from where parties selected set arbitration rules and may modify as per parties’ requirement and make sure that elements of the arbitration clause are valid, enforceable and effective.
- In the case where parties agree to ad hoc arbitration without enacting a set of rules and where parties enter into a two-party contract may use a model clause recommended by IBA guidelines.
3. Guideline 3: Absent special circumstances, the parties should not attempt to limit the scope of disputes subject to arbitration and should define this scope broadly.
The arbitration clause should be defined in such a way that a huge ambit of disputes covers, not only ‘arising out of’ the contract, but also all disputes ‘in connection with’ (or ‘relating to’) the contract, except special circumstances in which parties want to approach the court. Less scope of arbitration clause invites extra disputes about which matter or dispute subject to arbitration.
Recommended clause: All disputes arising out of or in connection with this agreement, including any question regarding its existence, validity, or termination, shall be finally resolved by arbitration under [selected arbitration rules].
- Guideline 4: The parties should select the place of arbitration. This selection should be based on both practical and juridical considerations.
The parties to the arbitration should select the seat of arbitration. The selection of the arbitration’s seat should be based on both practical and juridical considerations. The selection of the seat of arbitration involves various considerations such as parties’ familiarity with the language, arbitrators’ and parties’ involvement in the process, etc.
Generally, the parties to the arbitration should select the seat of arbitration in cases where the law allows the arbitration and where the court’s decision in arbitration matters supports the arbitration process by giving fair decisions. The seat of arbitration decides the procedural aspects of arbitration such as the arbitrator’s powers. The court can appoint or replace the arbitrators and can also interfere with the process of arbitration. The courts also have jurisdiction over the challenges made against the arbitral award. And if the arbitral awards are set aside at the seat of arbitration, then that award may not be enforceable. However, in a case where arbitral award is not set aside then also the seat of the arbitration under international treaties may affect the enforceability of the arbitral award. If both the parties are unable to agree on the seat of arbitration then the arbitrators will select the seat of the arbitration.
In ad hoc arbitration if both the parties are unable to appoint the arbitrators and the seat of arbitration too then the arbitration may not take place unless the courts are ready to assist them. So, it is necessary for both parties that they should mention the seat of arbitration in their arbitration clause.
- Guideline 5: The parties should specify the number of arbitrators.
The parties should select and mention the number of arbitrators in contracts, mainly the sole or arbitration tribunal of three arbitrators chosen for arbitration. The number of arbitrators has an impact on the duration, overall cost, and quality of arbitration proceedings. A sole arbitrator is very less expensive and less lengthy than an arbitration tribunal, elsewhere an arbitration tribunal of three arbitrators may be better equipped, and may reduce the risk of an unreasonable award.
In absence of a specified number of arbitrators in the clause, in an arbitration institution, the institute will decide the no. of arbitrators and in ad-hoc arbitration, no. of arbitrators decided as per the set rules of arbitration referred in the arbitration clause, in absence of set rules of arbitration then it is important to specify no. of arbitrators in the clause.
Recommended Clause: There shall be [one or three] arbitrator[s]
- Guideline 6: The parties should specify the method of selection and replacement of arbitrators and, in case of ad-hoc arbitration, parties should select an appointing authority.
- In an arbitration institution, the procedure for appointment and replacement of arbitrators is already mentioned under the set rules of an arbitration institution; the parties may agree on an alternative method by spell out in the arbitration clause.
- In ad-hoc arbitration, the parties either may already choose any set rules of arbitration which laid down procedure of appointment and replacement of arbitrators, and if not, then it is crucial for the parties to spell out the procedure of appointment and replacement of arbitrators including:
- Appointing authority means the third party, which appoints or replaces arbitrators if parties fail to do so. absence of appointing authority in the arbitration clause may affect parties in terms of expense and delay in the proceeding, as parties have to approach the court for appointment and replacement of arbitrators. Appointing authority can be an arbitration institution, court, trade, and professional associate, or any other neutral party; parties have to make sure that the proper and voluntary consent of the selected authority must be there for the performance of its duty.
- The time limit for appointment and replacement of arbitrators, the set rules of arbitration ordinarily include a time limit for appointment and replacement, but an absence of set rules or if parties depart themselves from appointment mechanism is set rules, then parties have to make sure time limit must be cover in the arbitration clause, so that time will not be wasted.
Recommended clause: There shall be three arbitrators, one selected by the initiating party in the request for arbitration, the second selected by the other party within  days of receipt of the request for arbitration, and the third, who shall act as [chairperson or presiding arbitrator], selected by the two parties within  days of the selection of the second arbitrator. If any arbitrators are not selected within these time periods, the [institution] shall make the selection(s). If the replacement of an arbitrator becomes necessary, a replacement shall be done by the same method(s) as above.
- Guideline 7: The parties should specify the language of the arbitration.
Parties to the contracts may have different languages between them or different languages from that of the place of arbitration. Parties must add the language of the contract and related documents and also add language for the qualification of arbitrators and councils. In absence of determining the language, arbitrators choose language as per their vision which may affect parties in terms of cost and delay. Choosing more than one language creates problems and challenges for arbitrators to conduct arbitration proceedings in two languages, which further may add cost and delay through translation and interpretation in proceedings. One language in an arbitration proceeding is suggested for better results.
Recommended clause: The language of the arbitration shall be […].
- Guideline 8: The parties should ordinarily specify the rules of law governing the contract and any subsequent disputes.
In international contracts, parties are from two different countries, which means two different governing bodies, so, parties need to select a rule of law that governs contracts and any subsequent dispute (the ‘substantive law’). The choice of substantive law is mainly referred to in a separate clause then arbitration clause but parties can refer to the clauses together by clearing that the clause serves a dual purpose, e.g., captioning the clause ‘Governing Law and Arbitration [or Dispute Resolution].
Recommended clause: This agreement is governed by, and all disputes arising under or in connection with this agreement shall be resolved in accordance with, [selected law or rules of law].
Drafting guidelines for optional elements
This section of Guidelines deals with the various options that parties may consider under arbitration clause during negotiation of the arbitration clause, as arbitration is a matter of agreement, parties may amend, alerted arbitration clause as per parties needs and requirements, options under this section is not mandatory, it only depends upon parties that they want to add or not.
- Option 1: The authority of the arbitral tribunal and the courts with respect to provisional and conservatory measures.
This option deals with the authority to order provisional and conservatory measures, either arbitration tribunal or court or both have the authority. it is less important to spell out in the arbitration clause, absence in the arbitration clause ordinarily authorised both the arbitration tribunal and court to order provisional and conservatory measures. The authority of arbitration tribunal arises from arbitration rules and arbitration laws, elsewhere the authority of court only arises from arbitration law.
Recommended clause: Except as otherwise specifically limited in this agreement, the arbitral tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal shall, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such.
- Option 2: Document production.
This option deals with what type of documents should be produced during international arbitration proceedings, as documents and exchange of information vary from case to case and arbitrator to arbitrator. Mainly, parties have three options regarding document production that is:
- Not mentioned anything regarding document production, so by default parties rely on provisions laid down under arbitration law.
- IBA developed set rules on taking evidence in international arbitration, which address the production of both paper documents and electronically stored information, parties may adopt IBA rules.
- Parties may create their own standards and cover extensive documents that shall be produced by parties that have an impact on the dispute.
Parties may face difficulties in arbitration in absence of rules regarding exemptions given to the parties for not producing documents due to privileges under the arbitration clause.
Recommended clause: [In addition to the authority conferred upon the arbitral tribunal by the [arbitration rules]], the arbitral tribunal shall have the authority to order production of documents [in accordance with] [taking guidance from] the IBA Rules on the Taking of Evidence in International Arbitration [as current on the date of this agreement/the commencement of the arbitration].
All contentions that a document or communication is privileged and, as such, exempt from production in the arbitration, shall be resolved by the arbitral tribunal in accordance with Article 9 of the IBA Rules on the Taking of Evidence in International Arbitration.
- Option 3: Confidentiality issues.
To keep the information confidential in arbitration proceedings by parties is not mandatory, and the same is not assumed by parties without expressly indicated in their arbitration clause. While arbitration is private, it depends upon the parties, what they want to choose for their contract: which arbitration laws and arbitration rules are applied. Few national laws or arbitration rules enforce confidential obligations on the parties, elsewhere general duty is recognised as a subject of exceptions.
Parties have to keep in mind while inserting confidential information in the arbitration clause that the point doesn’t avoid absolute requirements, which means not restrict to the disclosure of confidential information which required by law, to protect or pursue a legal right or to enforce or challenge an award in subsequent judicial proceedings and also make sure exception persons (witness and experts) on which parties are may disclose confidential information.
Recommended clause: The existence and content of the arbitral proceedings and any rulings or award shall be kept confidential by the parties and members of the arbitral tribunal except (i) to the extent that disclosure may be required of a party to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (ii) with the consent of all parties, (iii) where needed for the preparation or presentation of a claim or defence in this arbitration, (iv) where such information is already in the public domain other than as a result of a breach of this clause, or (v) by order of the arbitral tribunal upon application of a party.
- Option 4: Allocation of costs and fees.
Cost includes arbitrators’ fees and expenses and, if applicable, institutional fees, and lawyers’ fees in international arbitration. It is tough to predict how the arbitral tribunal will allocate these costs and fees at the end of proceedings, it creates uncertainty for the parties to calculate costs and fees on their part. Parties may reduce this uncertainty by addressing this issue in their arbitration clause (such provisions may not be enforceable in certain jurisdictions). Parties have some options which they can choose for their arbitration clause:
- Parties hand over the powers to the arbitrators that they can allocate costs and fees as they see fit.
- Parties may provide that; arbitrators can’t allocate costs and fees.
- Arbitrators try to ensure that costs and fees are allocated to the ‘winner’ or the ‘prevailing party’ on the merits, or that the arbitrators are to allocate costs and fees in proportion to success or failure. Parties may make sure to avoid language (“shall”) while drafting such a clause, as it is difficult to identify the “winner” or the “prevailing party”.
- The following clause provides Powers to the arbitrators to allocate cost and fees: The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyers’ fees [and costs and expenses of management, in-house counsel, experts, and witnesses], as the arbitral tribunal shall deem reasonable.
- The following clause provides for the allocation of costs and fees to the ‘prevailing’ party: The arbitral tribunal may award its costs and expenses, including lawyers’ fees, to the prevailing party, if any and as determined by the arbitral tribunal in its discretion.
- The following clause can be used to ensure that the arbitrators do not allocate costs and fees: All costs and expenses of the arbitral tribunal [and of the arbitral institution] shall be borne by the parties equally. Each party shall bear all costs and expenses (including its own counsel, experts, and witnesses) involved in preparing and presenting its case.
The benefits of arbitration are that the parties can choose arbitrators with expertise or knowledge relevant to their dispute. But usually, it is not suggested to the parties to add qualifications of arbitrators in their arbitration clause, as parties may not predict that expertise is required at the time of dispute or not, and it also reduces the availability of the arbitrators. If the parties want to add qualification of arbitrators in the arbitration clause, then parties have to avoid overly specific requirements, so that parties do not face problems to identify individuals, who meet the specified qualification mentioned under the arbitration clause and are available to act as arbitrators.
Recommended clause: [Each arbitrator] [The presiding arbitrator] shall be [a lawyer/an accountant].
[Each arbitrator] [The presiding arbitrator] shall have experience in [specific industry].
[The arbitrators] [The presiding arbitrator] shall not be of the same nationality as any of the parties.
- Option 6: Time limits.
Parties may provide a fixed period of time initiates from the commencement of arbitration to pass an award to save time and cost, this process is also known as fast-tracking, but it also creates problems as parties don’t know what type of issue arises under their contract and how much it takes time to resolve. If the award is not passed within a defined period, it may be unenforceable or may engage in unnecessary challenges. Parties can sort out this problem under their clause by allowing the tribunal to extend the time limits to keep off the risk of an unenforceable award.
Recommended clause: The award shall be rendered within […] months of the appointment of [the sole arbitrator] [the chairperson], unless the arbitral tribunal determines, in a reasoned decision, that the interest of justice or the complexity of the case requires that such limit be extended.
- Option 7: Finality of arbitration
The benefits of choosing arbitration are that the arbitral award is final and not subject to appeal. In many jurisdictions, an award can be challenged only based on lack of jurisdiction, unfairness, or serious procedural defects, but not on the merits. Many sets of rules of arbitration reinforce the finality of arbitration and the parties waive any recourse against the award. That the parties should specify that the award is final and not subject to recourse when the arbitration clause does not contain arbitration rules or where the rules are incorporated but not contain the finality of arbitration and waiver of recourse. It is advisable to repeat the finality of arbitration and waiver of recourse in the arbitration clause even if it has already been mentioned under the rules of arbitration. The parties should analyze the law of the seat of arbitration to decide the ambit of what is being waived and the language needed under the lex arbitri.
Recommended clause: Any award of the arbitral tribunal shall be final and binding on the parties. The parties undertake to comply fully and promptly with any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made.
Drafting guidelines for multi-tier dispute resolution clauses
Multi-tier dispute resolution clauses are those clauses that refer the disputes to the alternate mechanism of dispute resolution (other than arbitration) like negotiation, mediation, and conciliation, as a primary mechanism, after that the dispute will be referred to the arbitration, as a secondary mechanism of dispute resolution. This section deals with the challenges while drafting a multi-tier clause in the contract.
- Multi-Tier Guideline 1: The clause should specify a period of time for negotiation or mediation, triggered by a defined and undisputable event (i.e., a written request), after which either party can resort to arbitration.
The parties should make a clause in the contract which specifies the time period for negotiation or mediation as only after the expiry of the specified time period parties can go for the arbitration and that time period should be short. While determining the specific period; Parties should be informed that starting of mediation or negotiation may not suspend the specified time period. The specified time period should be defined and undeniable.
- Multi-Tier Guideline 2: The clause should avoid the trap of rendering arbitration permissive, not mandatory.
While drafting multi-tier dispute resolution clauses, parties unintentionally leave ambiguity on their intention to refer their disputes to arbitration, that disputes which are not resolved by mediation or negotiation. parties should lay down a clear intention to refer their pending disputes to arbitration.
- Multi-Tier Guideline 3: The clause should define the disputes to be submitted to negotiation or mediation and to arbitration in identical term
The parties should define the disputes which are to be submitted to negotiation or mediation and the disputes which are to be submitted to arbitration as a first step. If the clause does not define whether disputes are submitted to negotiation/mediation or to arbitration then such uncertainty recommends the disputes to arbitration as the first step, not to negotiation or mediation. The parties should specify this in their arbitration clause and if parties want to submit the dispute to the arbitration first then they should also specify this in the arbitration clause.
Drafting guidelines for multiparty arbitration clauses
Sometimes more than two parties are involved in international contracts, parties may face difficulties in drafting a clause referring to the multiplicity of parties. Parties cannot always depend upon clauses given by arbitration institutes, as these are usually drafted for two parties. For multiparty arbitration clauses need specialized advice that should generally be sought to draft.
- Multiparty Guideline 1: The clause should address the consequences of the multiplicity of parties for the appointment of the arbitral tribunal.
In a contract of multiple parties, it is not feasible to lay down that “each party” appoints an arbitrator, which may create problems in the appointment of arbitrators. So, parties can solve this problem in both situations (sole arbitrator and three arbitrators) by laying down that the sole arbitrator (or three arbitrators, as per the situation) is to be appointed jointly by the parties or, in absence of agreement, by the institution or appointing authority. Parties may refer to recommended clauses mentioned under IBA guidelines.
2. Multiparty Guideline 2: The clause should address the procedural complexities (intervention, joinder) arising from the multiplicity of parties.
There are numerous procedural complexities i.e., intervention and joinder in the multiparty contracts. Intervention means a contracting party, who is not a party to an arbitration initiated under the clause but may wish to intervene in the arbitration proceedings. and joinder means a contracting party, who is a respondent under arbitration proceedings, may wish to add another contracting party that has not been mentioned as a respondent. An arbitration proceeding would not be vitiated if parties failed to address procedural complexities, but such clauses create the possibilities of overlapping proceedings, conflicting decisions, and associated delays, costs, and uncertainties. In a general rule, the clause lay down that the notice of any proceedings initiated under the clause will be given to all contracting parties regardless, whether the contracting party is mentioned as a respondent or not, and the clause also provides the time period after the notice for intervention or join by any contracting parties in the proceedings and during the time period, no arbitrator should be appointed. Parties may refer to recommended clauses mentioned under IBA guidelines.
Drafting guidelines for multi-contract arbitration clauses
This section deals with the drafting of an arbitration clause in multi-contract, where the parties incorporate several related contracts related to one single international transaction.
- Multi-Contract Guideline 1: The arbitration clauses in the related contracts should be compatible.
The parties need to avoid setting out different dispute resolution mechanisms in their related contracts, otherwise, arbitrators appointed in one contract may not have jurisdiction to consider a dispute that raises questions about related contracts, which invites parallel proceedings. parties may avoid parallel proceedings by establishing a stand-alone dispute resolution protocol, which should be signed by all the parties and then embody by reference in all related contracts. In case parties face problems in concluding such a protocol, then the parties need to ensure that the arbitration clauses in the related contract are complementary or identical to each other. It needs to define the same substantive law, set of rules, languages, number of arbitrators, and place of arbitration in their arbitration clause. The parties also mentioned under their arbitration clause that a tribunal appointed under one contract has jurisdiction to consider and determine issues related to the other related contracts.
Recommended clause: The parties agree that an arbitral tribunal appointed hereunder or under [the related agreement(s)] may exercise jurisdiction with respect to both this agreement and [the related agreement(s)]
2. Multi-Contract Guideline 2: The parties should consider whether to provide for consolidation of arbitral proceedings commenced under the related contracts
Sometimes several arbitrations may take place in related contracts. In some cases, parties to the arbitration are in the opinion of a single consolidated arbitration as consolidated arbitration is cost-effective. However, sometimes parties are not in the favour of consolidated arbitration; they want separate arbitration proceedings for each dispute that arose under related contracts as parties might be taught that separate arbitration is more effective and efficient than a single consolidated arbitration.
If both the parties wish to have single consolidated arbitration proceedings for disputes then they should specify that in the arbitration clause. The parties should also describe the procedure for consolidating arbitration. Where the contract involves more than two parties then specialized advice is essential.
These guidelines are very helpful for the parties, attorneys, and drafters of an international arbitration clause to make an effective arbitration clause that reflects the fulfilment of parties’ needs and expectations in the arbitration process and reduces difficulties, unnecessary cost, and time to the parties. These guidelines provide model arbitration clauses which majorly include all issues and problems which may arise between the parties. IBA guidelines also resolve problems related to different situations and different needs of the parties and also provide model clauses that address different situations and needs of the parties. I would like to suggest before considering international arbitration in your contract or drafting an international arbitration clause you should read IBA guidelines which give you an idea about different problems and how you can resolve it, which you do not know initially but are also important to address in your contract to reduce future complexities between parties. IBA guidelines guide you, the best way to address the international arbitration clause in your contract and help you to understand points you should keep in your mind while drafting an international arbitration clause. These guidelines provide parties with both available choices and the pitfalls to avoid. Members of the IBA task forces are accountable for the IBA arbitration clause guidelines, which were adopted by a resolution of the IBA Council on 7 October 2010.
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