CHAPTER 12 THE NUTS AND BOLTS OF SELECTING AND DRAFTING DISPUTE RESOLUTION CLAUSES

• Jurisdiction: United States

International Energy and Minerals Arbitration
(Sep 2013)
CHAPTER 12
THE NUTS AND BOLTS OF SELECTING AND DRAFTING DISPUTE RESOLUTION CLAUSES
Jason Fry
Partner, Clifford Chance
Paris, France

JASON FRY is a Partner and Co-head of the International Arbitration Group of Clifford Chance Europe LLP, based in Paris. Between 2007 and 2012 he was Secretary General of the International Court of Arbitration of the International Chamber of Commerce (ICC) (Paris) and Director of Dispute Resolution Services of the ICC He has over 20 years of experience as counsel, advocate, and arbitrator in international arbitration proceedings. He is a Solicitor of the Senior Courts of England and Wales and a Barrister and Solicitor of the High Court of New Zealand. He was the Member for New Zealand of the ICC International Court of Arbitration from 1999 until 2007 and was a member of the drafting committee for the 2012 ICC Rules of Arbitration. He received his LLB from Canterbury University, New Zealand, and his BCL from Oxford University. He is a Fellow of the Chartered Institute of Arbitrators, a member of the Board of the International Mediation Institute, a member of the Governing Body of the ICC Court, and a member of the ad hoc advisory group on arbitration to the UK Department for Business, Innovation & Skills. He is also a member of the Advisory Board of Columbia University's Vale Center on Sustainable International Investment in New York.

International Energy and Minerals Arbitration

The Nuts and Bolts of Selecting and Drafting Dispute Resolution Clauses

Outline of topics

A. Benefits of Arbitration and Litigation

B. The Arbitration Clause:

• Drafting and scope

• Potential pitfalls

• Sample clauses

C. Optionality:

• Why it matters

• Unilateral Option Clauses

D. Alternatives, 'bolt-ons' and 'hidden extras':

E. A Practical Way Forward

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A. Benefits of Arbitration

▪ Enforceability:

• New York Convention

• Geneva Convention

• ICSID Convention

▪ Certainty of forum:

• Avoid the "Italian torpedo" problem sometimes faced in litigation

• Arbitrators not bound to defer to other Court proceedings

• Arbitration can proceed even if there are Court proceedings elsewhere

▪ Privacy and Confidentiality:

• Confidentiality of proceedings - not always confidential and not always a benefit if you want to apply commercial pressure through public media

• Non publication of awards - potential lack of consistent decisions on standard documentation

▪ Flexibility:

• Procedure

• Timing of Hearings

• Constitution of panel

• Interim remedies available (although no summary judgment)

▪ Neutrality:

• No...