Arbitration Checklist

When drafting an arbitration clause, there are a number of things that you have to decide. The most important are:

• whether to provide for ADR before resorting to arbitration (or whether to 'carve out' certain issues for expert determination);
• whether to use a set of institutional rules (see Institutional Rules or Not?) and, if so, which one;
• the Number of Arbitrators and the choice of arbitrators;
• the Seat of the arbitration;
• the Language of the arbitration;
• whether to make any further provision for Procedure in the clause itself; and
• whether you need any of the following add-ons: (i) a consolidation clause to deal with Chains of Contracts, (ii) Jurisdiction clause in support of arbitration, (iii) an Express Choice of Law to Govern Arbitration Clause , (iv) an option for one party to bring proceedings in the courts of a particular jurisdiction (arbitration clause with Option to litigate).

And in international contracts you must always have a Governing Law clause and you will usually want a Service of Process clause. Finally, whenever contracting with a State body, remember to include a waiver of .

It may be suggested that you agree to a clause providing that the arbitrators have power to decide ex aequo et bono or as amiable compositeur (cannot find link on tree). Agreeing to such a proposal can have significant consequences, so check the link above to see whether you really want to give the arbitrators this power.

Click on the links on the side menu or on the terms above for appropriate precedents and further explanation of the significance of the matters referred to. Once you have assembled your clause from the precedents provided refer back to this checklist to ensure that you have covered everything.