Drafting International Arbitration Clauses
Most arbitral institutions have promulgated model clauses
for parties to use to authorize the institution to oversee the arbitration. A
number of specialized publications regarding the drafting of international
arbitration clauses are available.
A number of essential elements should be included in almost
all international arbitration agreements. These include the agreement to
arbitrate, a definition of the scope of disputes subject to arbitration, means
for selecting the arbitrator(s), a choice of the arbitral seat and the adoption
of institutional or ad hoc arbitration rules.
A number of other provisions can also be included in international arbitration
clauses, including the language for the conduct of the arbitration, choice of
applicable law, arbitrator qualifications, interim relief, costs, procedural
matters and the like.
In order to bridge the gap when parties to an international
agreement have difficulty in agreeing upon an arbitral institution, some
international arbitration specialists recommend using an arbitration clause
that authorizes two arbitral institutions in the same city. Those clauses
generally empower the party commencing the arbitration to select the
Writing in the Business Law Today of the American Bar
Association, Eric Sherby (Israel) suggested a mnemonic device – “BLINC LLC” –
designed to enable the draftsman to remember a checklist for quickly drafting
an international arbitration clause: Broad, Law, Institutional, Number, Costs,
Location Language, and Carve-out.
International Arbitration Institute (IAI)
The International Arbitration Institute, headed by Emmanuel Gaillard, was created in 2001 under the auspices of the Comité
Français de l’Arbitrage (CFA) to promote exchanges and transparency in the
international commercial arbitration community.
The Association for International Arbitration (AIA)
The Association for International Arbitration is a
non-profit organization, founded in Paris in 2001 by Johan Billiet. The
Association for International Arbitration has an increasing number of members
among arbitrators and mediators of international backgrounds.
The Association was established with the aim of facilitating
arbitration, mediation and general forms of dispute resolution internationally.
Today, the AIA has developed into an organization dealing in the private
international law field to meet the needs of the fast-growing evolution of
dispute resolution within the international community. AIA provides
information, training and educational activities to expand the promotion of
arbitration and ADR globally by means of securing partnerships with various
organizations and parties to get involved in the life of the association. The
association constantly works to develop partnerships in the international realm
and to provide the international community of arbitrators and ADR professionals
with continuous exposure to the latest international developments, activities
and opportunities in the field. AIA continually encourages the participation
and contribution of its members in the pursuit of the association’s goals.
Atlanta International Arbitration Society (ATLas)
Atlanta, as host to the third-largest concentration of
Fortune 500 company headquarters in the United States, the economic capital of
the Southeast, and sited in one of the most arbitration-friendly states in the
nation, has become a center for international arbitration. Georgia took an
early lead in enacting an international arbitration-friendly state statute in
1988, becoming one of the first jurisdictions to adopt substantial portions of
the 1985 UNCITRAL Model Law on International Commercial Arbitration. O.C.G.A. §
9-9-30 et seq. The Atlanta International Arbitration Society (ATLas; www.arbitrateatlanta.org),
composed of scholars, judges, lawyers, business leaders, arbitrators, and other
professionals who specialize in international law and arbitration, is an
organization that focuses on educating, counseling, and guiding the
international legal community about arbitrations in Atlanta.
International Investment Arbitration
The last few decades have seen the promulgation of numerous Bilateral
Investment Treaties (BITs), as well as Multilateral
Investment Treaties, which are designed to encourage investment in signatory
countries by offering protections to investors from other signatory states. One
of the significant features of some BITs is that they provide investors with
the ability to resolve disputes with the host states before the International Centre for the Settlement of
Investment Disputes (ICSID).
Arbitration has been used for centuries, including in
Antiquity, for the resolution of disputes between states and state-like
After a period of relative disuse, Jay's Treaty between the United States and
Great Britain revived international arbitration as a means of resolving
inter-state disputes. The 1899 and 1907 Hague Conferences addressed arbitration
as a mechanism for resolving state-to-state disputes, leading to the adoption
of the Hague Conventions for the Pacific Settlement of International Disputes.
The Conventions established the Permanent Court of Arbitration and a
rudimentary institutional framework for international arbitration of
In recent years, international arbitration has been used to resolve a number of
disputes between states or state-like entities, including Eritrea v. Yemen,
the Abyei Arbitration,
the OSPAR Arbitration,
and the Iron Rhine Arbitration.