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180 STEPHEN R. BOND
Unless specific provision has been
made for multi-party/multi-contract
arbitrations in the relevant arbitration
clause(s) (and this will call for skilled
draftsmanship), such arbitrations may not
be possible at all or will entail numerous
procedural complexities which could
jeopardize any arbitration proceedings
that are commenced.
C. Negotiations, conciliation or
mediation as a precondition to
commencing arbitration
Appropriate to consider in certain
circumstances, such as when it can be
anticipated that each party to the relevant
contract has a strong interest in a longterm
relationship or the relevant
procedure is contained in a widely used
form contract such as the various FIDIC
forms of contract. Parties will almost
always try to negotiate the settlement of
a dispute (often successfully) and, less
frequently, may try conciliation or
mediation. Careful consideration should
be given as to whether to make any such
procedure a formal condition- precedent
to the commencement of an arbitration,
because such procedures may needlessly
American Arbitration Association: International
Arbitration Rules (AAA)
Any controversy or claim arising
out of or relating to this contract shall
be determined by arbitration in accordance
with the International Arbitration
Rules of the American Arbitration Association.
delay the commencement of arbitration.
If the parties have a good working
relationship that will continue during
resolution of the dispute (e.g., where the
dispute concerns only one aspect of a
joint venture), then resort to such an
alternative dispute resolution (“ADR”)
mechanism before arbitration may be
appropriate. Always provide that any
such ADR procedures be commenced and
completed within a clearly defined time
period (e.g., mediation must be
commenced within 15 days of receipt of
a written notice of a dispute and
completed within 30 days unless both
parties agree to extend this period).
4. CONCLUSION
INSTITUTIONAL MODEL CLAUSES
In practice, the dispute resolution
clause is too often dealt with hurriedly as
one of the last points before a contract is
concluded. However, considerable
analysis may be necessary or advisable
before drafting an arbitration clause for a
given contract. For this reason, it is
recommended to begin consideration of
the formulation of the arbitration clause
at the outset of negotiations.
International Chamber of Commerce
(ICC)
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.