Drafting International Dispute Resolution Clauses
Importance of Dispute Resolution Clauses
If parties overlook dispute resolution clauses when drafting complex commercial agreements, they may lack the tools to effectively protect their rights and interests in the transaction when the need arises, particularly if they need to enforce their rights across borders in one or more foreign countries.
Taking the time to negotiate effective dispute resolution provisions in the transaction documents at the outset can ultimately save significant time and costs. Once a dispute arises, the parties may be unable to negotiate a dispute process or forum, and may find themselves facing protracted litigation over issues of jurisdiction, venue and forum.
Choosing Between Litigation and Arbitration
International arbitration strives to be transnational in nature and has incorporated aspects of both the civil and common law systems, which can be tailored to suit the needs of the parties and the dispute. Even where a party might convince its opponent to litigate in the party’s home forum, this may not be the best course. More than 150 countries have implemented treaties providing for the enforcement of international arbitration awards, most notably the Convention on Recognition and Enforcement of Foreign Arbitral Awards, known as the “New York Convention.”
Governing law and forum selection clauses.
Governing law clauses provide the substantive law that will inform the interpretation and enforcement of a contract, but selection of the forum, which in arbitration entails a designation of the “seat” of arbitration, informs the procedural law that will govern the dispute. Sometimes these two topics are related — for instance, New York has a statute permitting parties to choose New York courts as their forum for disputes, but, for that choice to be effective, they also must choose New York law as the governing law of the contract.
Specific considerations impacting the drafting of arbitration clauses
While party autonomy is a hallmark of arbitration — i.e., parties may negotiate the dispute process that best accounts for the nature of their transaction and other needs — there are background legal principles that inform the interpretation and enforcement of any arbitration clause, making informed drafting critical.
First, parties should consider the identity and nature of their counterparties — for example, what are their nationalities, and are any of them sovereigns? This issue may directly bear on a number of other important ones, from the service of process at the start of the case to the enforcement of an arbitration award at the end.
Second, parties should consider the nature of the transaction and what they need/want out of the arbitral process. Parties should ask themselves: (1) What should be the scope of the arbitration, i.e., what disputes should be subject to arbitration, and what disputes, if any, should be subject to a different dispute process? (2) How many arbitrators should there be? (3) What should be the seat of arbitration? (4) What institution and rules should govern? (5) What will be the language of the arbitration? (6) Should preliminary and interim relief be addressed? (7) Should the clause provide for the consolidation of disputes? And, finally, (8) What should the terms of confidentiality be?
Given the number of factors to be considered, and the need for knowledge of the background principles and law, in a sophisticated transaction, the parties should consider involving experts in the drafting of any arbitration clause. Even if a party has negotiated an arbitration clause before, or has been through an arbitration, the background principles and law can change.
Multiple-Party, Multiple-Agreement Transactions
“Multiple-party transactions” (deals with more than two signatories) are rarely complicated when each of the signatories belongs to one “side.” In such situations (e.g., where affiliates from each side sign the agreement), it is not hard to draft a dispute clause where both sides will appoint an arbitrator and the third arbitrator (the chair) will be neutral. More complicated issues arise, however, when there are more than two “sides.” This situation can arise in numerous ways. To cite just one example, when there is a sale of a minority parcel of shares, the deal can involve the entering party (the buyer), an exiting party (the seller) and a third party (the majority shareholder) — there are many other kinds of “three-cornered” or “four-cornered” transactions.
In these situations — truly multiparty disputes — the normal model of arbitration needs adjustment. Normally, arbitration is binary: There are two sides, and each side appoints an arbitrator, which is followed by the selection of a neutral chair, who is jointly nominated (or appointed by the arbitral institution). In a multiparty dispute, unless the parties can be corralled into two “sides,” this binary model will not work. The normal drafting solution (and the one favored by several arbitral institutions) is for each of the three arbitrators to be appointed by an institution.
When drafting an arbitration clause involving multiple parties, drafters should try to anticipate how a multiparty dispute would unfold. This can have an impact upon, for example, (1) the manner in which predispute procedures (e.g., predispute negotiation periods, if they appear in the contract) are observed; (2) the disclosure/discovery of documents; and (3) the manner and place in which a future award will be enforced (and against whom).
Large deals typically involve more than one contract — even in a simple share-purchase transaction, there often will be a share purchase agreement (covering the transfer) plus a shareholder agreement (going forward). There also will be separate buyer/seller contracts along a supply chain, e.g., an upstream oil production license, followed by a production sharing contract, as well as midstream or downstream arrangements (pipeline, offtake, etc.) In these scenarios, a dispute involving one contract relationship can lead to disputes in others.
In some cases, parties may want to have the same arbitral procedure governing related contract disputes. If so, this can be addressed at the drafting stage. Parties can agree, for example, to a mechanism for the consolidation of disputes arising under related agreements. Doing this may, in some situations, save costs and create other efficiencies.
Moreover, it can be important to keep disputes separate (e.g., in a supply chain situation, parties often will not want to have disputes combined, particularly when it would lead to disclosure of sensitive pricing information). In such scenarios, drafters should be diligent in fencing off disputes as they arise under multiple agreements.
Intersection Between Arbitration and the Courts
While the panel had focused on drafting arbitration clauses, it also was important to consider the role of the courts in the enforcement of arbitration agreements, granting relief in aid of arbitration and the enforcement of awards.
On the enforcement of arbitration agreements, courts will first consider whether there was a valid arbitration agreement. In the U.S., courts have broad discretion for deciding such “gateway” issues in arbitration, and while U.S. courts will compel arbitration, and even in certain instances compel nonsignatories to arbitrate, they do assess whether it was proper for the parties to be forced to arbitrate. The courts also are empowered to enjoin arbitration, if they think it is improper or, conversely, enjoin litigation, if they believe arbitration is the dispute resolution mechanism agreed upon by the parties.
A court may issue negative injunctive relief to have a party cease action that harms the moving party. A court also may issue mandatory injunctive relief, to require a party to continue performing some contractual obligation in maintenance of the status quo during the pendency of the arbitration. Parties also may pursue pre-award asset attachment in order to prospectively ensure enforcement of an eventual award, although the standard for such relief generally is stringent, as it requires a showing that absent attachment, the award will be meaningless due to a dissipation of the counterparty’s assets.