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Arbitration Clauses for International Contracts, 2nd Edition

Arbitration Clauses for International Contracts, 2nd Edition

Name: Arbitration Clauses for International Contracts, 2nd Edition
Brand: Juris Publishing
SKU: 9781933833064
Price: 1250.00 HKD
Availability: OutOfStock
Author: Paul D. Friedland
ISBN: 9781933833064

By Paul D. Friedland

Juris Publishing July 2007

Specifications

ISBN-13: 9781933833064
Publisher: Juris Publishing
Publication: July 2007
Format: Hardback , 370 pages
Jurisdiction: International ? Countri(es) for reference only

Details

This book, by a leading international arbitration practitioner, offers suggested language for every option that a drafter of an international arbitration clause may need. Following a succinct assessment of the choice between arbitration and litigation and commentary on the choices among arbitration fora and formats, the author presents an accessible how-to for drafting. While other works offer theory and a smattering of drafting tips, there is no other comprehensive collection of workable language, presented accessibly with easy-to-reference appendices. This book will be a standard reference for both in-house counsel and outside practitioners.

This book provides, in an accessible format, clauses that address all the significant issues that contracting parties face, and in any event should consider, when they decide to draft a dispute resolution clause for an international contract. Those who wish immediate access to suggested language may turn directly to the Appendices. Those who wish to understand the analysis that leads to the suggested language should read the text.

Chapter 1 discusses model and standard clauses for both institutional and non-administered (Ad-Hoc) arbitration.

Chapters 2 through 5 discuss the threshold issues faced by parties when they consider providing for a dispute resolution method in their international contract. First, should the contract provide for arbitration (by means of an arbitration clause) or litigation (by means of a consent to the jurisdiction of a designated forum)? Second, if arbitration is selected, should it be administered by an institution or non-administered (ad hoc)? Third, if institutional arbitration is selected, which institution? Fourth, how should the place of arbitration be chosen and what are the implications of the choice?

Chapter 6 is a "how-to" discussion of drafting arbitration clauses, and comprises the largest section of this book. It divides the elements of an arbitration clause among three categories: essential elements; recommended elements; and optional elements. For each element, Chapter 5 offers in the text examples of workable contract language, and an explanation of alternatives. For ease of reference, the Appendices set out these same recommended clauses.

Chapter 7 discusses the utility of providing for negotiation or mediation as a mandatory first step before resorting to arbitration or litigation in international contracts, and suggests language that provides for such a first step without pitfalls.

Chapters 8 through 12 address special situations that may alter the considerations that lead to the selection or rejection of the clauses discussed in Chapter 6. Chapter 8 deals with joinder and intervention clauses for multi-party contracts. Chapter 9 discusses consolidation clauses for related contracts. Chapter 10 addresses expert determination clauses and dispute boards. Chapter 11 analyzes the special issues presented by arbitration clauses in contracts with sovereigns. Chapter 12 concentrates on Chinese arbitration law and contacts.

Chapter 13 addresses choice of law clauses, a subject distinct from dispute resolutionper se but one that nevertheless should be addressed in any international contract.

New to the Second Editon:

(i) More decisive recommendations of clauses. The first edition included some clauses whose language the author considered workable, but which he did not in fact recommend. The new edition makes clear which clauses are recommended and why, and has eliminated entirely several clauses set out in the first edition.

(ii) Expert determination and dispute boards. This second edition adds a chapter on clauses providing for expert referral, a practice increasingly used in construction contracts and share purchase agreements.

(iii) China. This second edition introduces a chapter dealing with the special drafting considerations that arise when mainland China is either the place of arbitration or the place of possible enforcement of an arbitral award.

(iv) Sovereign contracts. This chapter is much revised. The author has expanded the discussion of ICSID arbitration clauses and added a section on the vexing issue of assignment of ICSID arbitration agreements. The author has excluded discussion of arbitration agreements involving NGOs.

(v) Increased reference to Latin America law and practice. During the years since the first edition of this book, Latin America has moved to the center of the international arbitration world. In this edition, references to U.S. and European laws have been retained (and updated), but they are no longer the sole references.

Preface to Revised Second Edition

Preface to First Edition

Introduction

Chapter 1: Model and Standard Clauses
(1) Model and Standard Clauses for Institutional Arbitration
(2) Model and Standard Clauses for Non-Administered (Ad Hoc) Arbitration

Chapter 2: Choosing Between Arbitration and Litigation
(1) Speed and Cost
(2) Neutrality, Availability, Familiarity/Flexibility and Enforceability
(3) Anticipating the Outcome
(a) Arbitrators versus Judges and Juries
(b) Limitations upon Appeals
(c) The Risk of Compromise Awards
(4) Process
(a) Privacy/Confidentiality
(b) Consolidation
(c) Summary Procedures
(d) Presentation of Evidence
(e) Document Production
(5) Summary of Reasons to Choose Arbitration or Litigation

Chapter 3: Choosing Between Administered and Non-Administered Arbitration

(1) The Utility of Incorporating a Set of Rules
(2) Support Services
(3) Flexibility
(4) The Risk of Obstruction
(5) Enforceability
(6) Cost
(7) Existing Disputes

Chapter 4: Choosing an Arbitral Institution
(1) Why it Matters
(a) Institutional Rules
(b) Arbitrator Appointments
(c) Administrators
(d) Reputation and Enforceability
(e) Cost
(f) Place of Arbitration
(2) The Choices

Chapter 5: Choosing a Place of Arbitration
(1) Why it Matters
(a) Enforceability
(b) Judicial Interference and Support
(c) Visas, work permits and right to use foreign counsel
(d) Relative Convenience and Expense
(e) Selection of the Arbitrators
(2) What Happens When the Parties Fail to Choose
(3) How to Identify a Suitable Place of Arbitration

Chapter 6: Drafting an Effective Arbitration Agreement
(1) The Need for Consent
(2) The Need for an Agreement in Writing
(3) Model and Standard Clauses as a Guide
(4) Necessary Elements
(a) Scope
(b) Designated Dispute Resolution Method
(c) Exclusivity
(5) Recommended Elements
(a) Place of Arbitration
(b) Method of Selection and Number of Arbitrators
(c) Language
(6) Optional Elements: Process
(a) Arbitrator Qualifications
(b) Provisional Measures
(c) Confidentiality
(d) Document Disclosure
(e) Disposition of Issues
(f) Presentation of Evidence
(g) Time Limits and Fast-Tracking
(h) Governing Arbitration Law
(i) Arbitral Jurisdiction to Decide Arbitral Jurisdiction
(j) Tribunal-appointed Experts
(k) Amicus Participation
(l) Specifying the Current or Updated Rules
(7) Optional Elements: Award
(a) Allocation of Costs and Fees
(b) Interest
(c) Punitive Damages
(d) Currency of Award
(e) Offsets
(8) Optional Elements: Judicial Role
(a) Entry of Judgment
(b) Judicial Review: Limited
(c) Judicial Review: Expanded
(d) Designating a Judicial Forum for Enforcement of the Arbitration Agreement
(9) Optional Elements: Other
(a) Affiliates
(b) Assignment
(c) Contractual Limitations Periods
(10) Submission Agreements for Existing Disputes
(11) Alternative Clauses
(a) Sole Option (Asymmetrical) Clauses
(b) Complementary Arbitration and Litigation
(c) Baseball Arbitration

Chapter 7: Negotiation or Mediation as a First Step Before Arbitration

(1) The Utility of Negotiation or Mediation as a Mandatory First Step
(2) Drafting Tips
(3) Recommended Clauses for Negotiation or Mediation as a First Step

Chapter 8: Joinder and Intervention Clauses for Multi-Party Contracts
(1) Challenges
(2) Solutions

Chapter 9: Consolidation Clauses for Related Contracts

(1) Stand-Alone Consolidation Protocol
(2) Consolidation Clause
(3) Fallback Option

Chapter 10: Expert Determination and Dispute Boards

(1) Standard or Institutional Expert Determination Clauses
(a) FIDIC
(b) World Bank
(c) ICC
(d) Ad Hoc Expert Determination Clauses

Chapter 11: Sovereign Contracts

(1) ICSID Arbitration Clauses
(a) ICSID Model Clause
(b) Jurisdictional Issues
(c) Venue
(d) Confidentiality
(e) Fallback Provision
(f) Assignment of ICSID Arbitration Agreements
(2) Alternatives to ICSID Arbitration for Sovereign Contracts
(a) UNCITRAL Arbitration
(b) ICSID Additional Facility
(c) Permanent Court of Arbitration
(3) Waiving Immunity as to Enforcement

Chapter 12: China Contracts

(1) Overview for Chinese Arbitration Law
(2) Drafting Tips for "Domestic" or "Foreign Related" Contracts
(3) Note on Model ICC China Clause
(4) Recommended Clause for Arbitration Outside China
(5) Recommended Clause for CIETAC Arbitration

Chapter 13: Choice of Law Clauses
(1) Choice of Substantive Law in Relation to Choice of Dispute Resolution Method
(2) Suggested Choice of Law Clauses
(3) Lex mercatoria; ex aequo et bono; amiable composition
(4) Convention on the International Sale of Goods

Appendices
Appendix 1 Model and Standard Clauses for Institutional Arbitration
Appendix 2 Model and Standard Clauses for Non-Administered (Ad Hoc) Arbitration
Appendix 3 Affiliates
Appendix 4 Amicus Participation
Appendix 5 Arbitral Jurisdiction To Decide Arbitral Jurisdiction
Appendix 6 Arbitrators, Method of Selection and Number
Appendix 7 Arbitrators, Qualifications
Appendix 8 Assignment of ICSID Arbitration Agreements
Appendix 9 Baseball Arbitration Clause
Appendix 10 China Contracts
Appendix 11 Choice of Arbitration Law
Appendix 12 Choice of Substantive Law
Appendix 13 Complementary Arbitration and Litigation Clauses
Appendix 14 Confidentiality
Appendix 15 Consolidation
Appendix 16 Costs and Fees
Appendix 17 Currency of Award
Appendix 18 Document Disclosure
Appendix 19 Dispositive Applications
Appendix 20 Entry of Judgment
Appendix 21 Expert Referral Clauses
Appendix 22 ICSID Clauses
Appendix 23 Interest
Appendix 24 Judicial Forum for Enforcement of Arbitration Agreement
Appendix 25 Judicial Review, Exclusive
Appendix 26 Judicial Review, Expanded
Appendix 27 Language
Appendix 28 Limitations Periods
Appendix 29 Mediation as a First Step
Appendix 30 Multi-Party Contracts
Appendix 31 Narrow Scope
Appendix 32 Negotiation as a First Step
Appendix 33 Negotiation and Mediation as Two Steps in a Three-Step Clause
Appendix 34 Offsets
Appendix 35 Place of Arbitration
Appendix 36 Presentation of Evidence
Appendix 37 Provisional Measures
Appendix 38 Punitive Damages
Appendix 39 Sole Option Clauses
Appendix 40 Sovereign Contracts
Appendix 41 Specifying the Current or Updated Rules
Appendix 42 Submission Agreements for Existing Disputes
Appendix 43 Time Limits and Fast-Tracking
Appendix 44 Tribunal-appointed Experts
Appendix 45 U.S. Contracts
Appendix 46 Multi-Party Contracts Joint Nominations

Index

Table of Cases

Bibliography

About the Author

Paul Friedland is a Partner at White & Case LLP and Chair of the firm's International Arbitration Practice Group. Mr. Friedland was Chair of the Task Force that developed the recent "IBA Guidelines for Drafting International Arbitration Clauses." Mr. Friedland is Chair of the Law Committee and a Member of the Board of Directors of the AAA and a Court Member of the LCIA.

Reviews

Although it is certainly correct that Paul Friedland's new edition of Arbitration Clauses for International Contracts deserves a place on the short shelf of indispensable works on international arbitration, you will know that your practice is happily busy if this book rarely touches that shelf and instead occupies a different place, i.e. your desk.... In short, if you imagine an LLM course that is designed to prepare lawyers, whether in-house or outside counsel, to advise on international dispute resolution matters, Friedland provides a follow-up on the first month of the course, when you are on the business hot seat intead of the examination hot seat. No matter how experienced the practitioner, the heat of that business hot seat makes Friedland's measured tone and his fusion of practical experience and academic rigour an extremely valuable aid....Arbitration Clauses for International Contracts is the product of a practitioner-scholar in complete command of his field. The book's economy of expression also manifests the discipline of an advocate who understands what his audience needs to read in order to reach sound results....

Arbitration International, Vol. 26 No. 3 2010

"Paul D. Friedland's second edition of "Arbitration Clauses for International Contracts" is a must-have for all practitioners working in the burgeoning field of international arbitration. Indeed, it would not be amiss for corporate attorneys and in-house counsel drafting agreements for trans-border transactions to also have and resort to this work as well."
- Barry H. Garfinkel, Counsel at Skadden, Arps, Slate, Meagher & Flom, Former Co-Head of the firm's international arbitration practice group.

"Paul Friedland has written an excellent book which will be particularly useful for corporate counsel negotiating international transactions. The book covers the full spectrum of information necessary for deciding whether to use arbitration for disputes resolution, which arbitral forum to choose and factors to think about in designating arbitrators. Perhaps most useful, Friedland provides comprehensive advice on virtually all the elements which parties should consider using in disputes clauses. Practitioners will undoubtedly double check the boilerplate arbitration clauses they have been using after reading this book."
- Stephen E. Smith, Vice President and General Counsel, Lockheed Martin Space Systems
Company

"Arbitration clauses are all too frequently the Cinderella of contract negotiation. It is a considerable challenge to produce a handbook of manageable size, useful to the commercial lawyer faced with drafting such provisions and the specialist arbitration practitioner alike. That Paul Friedland has both a thorough understanding of the issues with which he deals, and considerable practical experience of how they might best be tackled, is evident from his ability to present the subject matter succinctly and with commendable clarity. The specimen clauses set out in the comprehensive appendices likewise inspire confidence, and rightly so. Mr. Friedland will not be alone in consigning to the wastebin his randomly accumulated, and, thanks to this book, now superfluous, collection of potential precedent materials."
- John Beechey, Chair, ICC International Court of Arbitration, Paris; Former Partner and Head of International Arbitration Practice, Clifford Chance, London

"Mr. Friedland has used his long experience as advocate and counselor to create an enormously useful resource for the international practitioner. The book includes not only a comprehensive discussion of the considerations that go into drafting arbitration clauses in international contracts, but an orderly series of models that will make the drafter's task infinitely easier. Anyone practicing in the field should have a copy readily at hand."
- Donald Donovan, Partner, Debevoise & Plimpton, New York and Vice-President, International Council for Commercial Arbitration (ICCA)

Reviews of Arbitration Clauses For International Contracts

"This book intends to provide, in an accessible format, clauses that address all the significant issues that contracting parties face when drafting dispute resolution provisions for international contracts. This feat may seem overly ambitious but Friedland quite successfully achieves it by skillfully mingling the trite and the complex, thus allowing a reader new to arbitration to become familiar with arbitration agreement draftmanship, while providing useful information and food for thought for more sophisticated readers. The author is especially to be commended for his comparative approach: Friedland tackles the drafting of dispute resolution clauses not only from a U.S. angle but also under the rules and laws of major arbitration institutions and important host countries such as France, the U.K. and Switzerland.

The book is well structured, very readable and a valuable tool for anybody called to draft an arbitration agreement to verify whether an arbitration clause is complete be it for the first time or for the 100th. It is a welcome addition to any arbitration practitioner's library."
- Swiss Arbitration Association Bulletin

"This book is more than just a compendium of arbitration clauses as the title might imply. By drawing upon Mr. Friedland's undoubted expertise the book provides in an explicit and comprehensive manner an insight into the philosophy and culture of modern international arbitration practice which establishes the rationale supporting the concepts incorporated in the exampled arbitration clauses.
This book contains the fruits of the author's wealth of experience in drafting arbitration clauses and practice in international law. The book collects in a single publication a resource tool that will be of significant benefit to and the advancement of the institution of international arbitration.
Practitioners will find this text a valuable aid well meeting the requirements of busy lawyers in an expanding international commercial and legal environment and is a welcome addition to the body of international arbitration knowledge."
- Mealey's International Arbitration Report

"Arbitration Clauses For International Contracts is an extremely well-written, useful and user-friendly resource, and should find its place on the bookshelves of international law practitioners and business people alike."
- ICSID Review