2006/Vol. 5 No.1 - Hamline Law - Hamline University

More documents

Recommendations

Info

16 THE JOURNAL OF AMERICAN ARBITRATION [<strong>Vol</strong>. 5:1 The FAA then requires a court to “stay litigation” 63 and “compel arbitration.” 64 The language of the arbitration clause is vital because it is what courts examine to determine whether parties have submitted a particular dispute to arbitration. Arbitration clauses run the gamut from the simple to the complex to the ridiculous. A simple, standard arbitration clause is often recommended for any type of dispute. For example, the American Arbitration Association (AAA) recommends this simple clause for all commercial contracts: Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules [including the Optional Rules for Emergency Measures of Protection], and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. 65 A similar simple clause is recommended even for large international disputes by agencies such as the London Court of International Arbitration (LCIA), 66 the International Chamber of Commerce (ICC) 67 dispute.’”). 63. 9 U.S.C. § 3 (2000) (providing that “[i]f any suit . . . be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement”). 64. 9 U.S.C. § 4 (providing that “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement. [U]pon being satisfied that the making of the agreement for arbitration . . . is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement”). 65. See sources cited supra note 45. 66. London Court of International Arbitration, Arbitration Rules: Recommended Clauses (Jan. 1, 1998), available at http://www.lcia.org/ (last visited Oct. 25, 2005). Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be [one/three].
<strong>2006</strong>] ARBITRATION: THE BASICS 17 and the China International Economic and Trade Arbitration Commission (CIETAC). 68 Parties who want to retain more control over the arbitration proceeding should include more detail in the arbitration clause. A more detailed arbitration clause will address: the method of selection and number of arbitrators; arbitrator qualifications; language used in the arbitration; governing law to be applied during the arbitration; conditions precedent to arbitration; preliminary relief; document discovery; duration of arbitration proceedings; remedies; reasoned opinion accompanying the award; assessment of attorneys fees; confidentiality; and appeal. 69 Id. The seat, or legal place, of arbitration shall be [City and/or Country]. The language to be used in the arbitral proceedings shall be [ ]. The governing law of the contract shall be the substantive law of [ ]. 67. International Chamber of Commerce, The Standard ICC Arbitration Clause: Drafting the Arbitration Agreement, available at http://www.iccwbo.org/court/engli sh/arbitration/model_clause.asp (last visited Oct. 25, 2005). The ICC recommends parties to include the following clause in their contracts: All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. Id. 68. China International Economic and Trade Arbitration Commission, Model Arbitration Clause, available at http://www.cietac.org.cn/english/model_clause/mo del_clause.htm (last visited Oct. 25, 2005). CIETAC recommends the following clause: Any dispute arising from or in connection with this Contract shall be submitted to China International Economic and Trade Arbitration Commission for arbitration which shall be conducted in accordance with the Commission’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding on both parties. Id. 69. See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 508 (1974). In the Scherk case, the arbitration clause provided that: The parties agree that if any controversy or claim shall arise out of this agreement or the breach thereof and either party shall request that the matter shall be settled by arbitration, the matter shall be settled exclusively by arbitration in accordance with the rules then obtaining of the International Chamber of Commerce, Paris, France, by a single arbitrator, if the parties shall agree upon one, or by one arbitrator appointed by each party and a third arbitrator appointed by the other arbitrators. In
Page 1: THE JOURNAL OF AMERICAN ARBITRATION
Page 4 and 5: 2 THE JOURNAL OF AMERICAN ARBITRATI
Page 12 and 13: 10 THE JOURNAL OF AMERICAN ARBITRAT
Page 68 and 69:
66 THE JOURNAL OF AMERICAN ARBITRAT
Page 70 and 71:
Page 72 and 73:
Page 74 and 75:
Page 76 and 77:
Page 78 and 79:
Page 80 and 81:
show all

2006/Vol. 5 No.1 - Hamline Law - Hamline University

Create successful ePaper yourself

Delete template?

Save as template?