CM July and August 2023 digital

BUSINESS ADVICE
BEYOND DISPUTE
How arbitration can help resolve commercial
and international trade disputes.
AUTHOR –Nick McQueen
COMMERCIAL arrangements
can break down even at
the best of times. The
risk of disputes arising
typically increases at times
of political and economic
change and uncertainty, and where
business is conducted across borders this
can add a further layer of complexity.
Arbitration defined
Arbitration is an alternative to court
litigation as a formal means of resolving
disputes. The parties agree to submit the
dispute in question to arbitration – there
is usually an agreement or clause to this
effect included in the contract itself for
this purpose – and then an independent
arbitrator or panel of arbitrators makes an
award, acting in a judicial fashion, which
is final and binding on the parties.
Parties are free to choose in their
agreement or clause the number of
arbitrators; which rules will apply (for
example, those of a particular arbitral
institution); where the arbitration will
take place (known as the ‘seat’); the
governing law of the contract and the
arbitration agreement or clause itself;
and the language to be used in the
proceedings. The New York Convention
on the Recognition and Enforcement of
Foreign Arbitral Awards facilitates the
enforcement of arbitral awards in most
countries in the world.
The seat of arbitration is a key
consideration because this impacts
on issues such as the extent to which
arbitral awards can be challenged; the
enforceability of awards; confidentiality;
and how ‘friendly’, effective and
interventionist the national courts will
be in supervising and supporting the
arbitration process.
Prior planning
It is essential to give careful thought to
dispute resolution clauses from the outset.
All too often, contracting parties are keen
to push forward with their commercial
arrangements and fail to plan effectively
for how disputes will be managed if
things go wrong. Careful drafting can
lead to significant time and costs savings
and make disputes easier to resolve in
the long run. In fact, it is not unusual for
dispute resolution clauses to be drafted
at the last moment as an afterthought. It
is important to take the time at the start,
well in advance of any dispute becoming
a reality, to weigh up the advantages and
disadvantages of the different forms of
dispute resolution, taking into account
the parties’ particular circumstances and
the likely nature of any dispute.
An effective dispute resolution clause
requires the parties to follow a preagreed
route to resolution if and when
a dispute arises. Careful thought at the
drafting stage can prevent any potential
secondary dispute about whether, how,
and even where, the primary issue
should be resolved; it can minimise
the scope for any tactical game-playing
(thereby helping to preserve commercial
relationships); and it can ensure that the
time and costs of dealing with formal
litigation or arbitration are only incurred
as a last resort.
“London is a very
well-established
and sophisticated
arbitration centre
with worldclass
facilities
and a wealth
of high-quality
and experienced
professionals.”
Parties should consider whether tiered
dispute resolution clauses may be suitable
for the commercial relationship or
transaction in question, i.e. clauses that
mandate an escalating procedure designed
to encourage an open and frank exchange
to explore whether a commercial solution
is possible and, if not, whether resolution
can be achieved through mediation
or another form of alternative dispute
resolution (ADR), before proceeding to
arbitration (or court litigation).
The process to be followed does not have
to be formal, but it must be sufficiently
clear and certain, without requiring any
further agreement between the parties.
That means that all steps in the process,
including machinery for the appointment
of any mediator or other expert, must
be comprehensively specified. This may
include incorporating the procedures
of an external ADR body. The clause
should be precise and clearly drafted. If
appropriate, it should comprehensively
set out each party’s obligations during the
intended ADR process and confirm their
unequivocal commitment that the process
must be exhausted before litigation or
arbitration is pursued. The clause should
also address matters such as clarification
of the issues in dispute, confidentiality,
any time limits and the consequences of
any failures to comply with the clause.
In complex contracts, it may be
appropriate to apply different dispute
resolution mechanisms to different
aspects of the contract. If arbitration is
chosen, and it is already clear what types
of disputes are likely to arise, it may be
possible for the parties to agree in the
contract on a suitable procedure and
timescale for the arbitration, including the
use of fast-track rules where appropriate.
Where the relevant law allows, parties
may wish to consider excluding certain
challenges to an arbitral award in the
courts. While there is an implied duty of
confidentiality in relation to arbitration
in England and Wales, parties should
consider agreeing express provisions to
maximise protection.
Once a dispute has arisen, good legal
advice should be sought as soon as
possible.
So why arbitrate?
In a 2021 survey, 2021 International
Arbitration Survey: Adapting arbitration
to a changing world, published by Queen
Mary University of London, 90 percent
of respondents chose arbitration as their
preferred method of resolving crossborder
disputes, either standalone or in
conjunction with ADR.
Parties often identified a number of
valuable characteristics of arbitration
such as enforceability of awards; avoiding
specific legal systems/national courts;
flexibility; ability of parties to select arbitrators;
and confidentiality and privacy.
Brave | Curious | Resilient / www.cicm.com / July & August 2023 / PAGE 12