It is recommended that parties wishing to refer to ICC arbitration in their contracts use the model clause below. “All disputes arising out of this Agreement or its validity shall be settled in accordance with the Arbitration Rules of the German Arbitration Institution (DIS) without recourse to the ordinary courts. 6. If one of the parties defaults on a procedural order made by the tribunal, the tribunal has the power to continue the arbitration proceedings and make its award. The substantive law of the contract applies to the contract. If ICC arbitration is chosen as the preferred method of dispute resolution, this should be decided when negotiating separate contracts, contracts or arbitration agreements. However, if both parties agree, this can be resumed even after a dispute. “Any dispute arising out of or in connection with this Agreement shall be submitted to the China Commission of International Economic and Commercial Arbitration (CIETAC) for arbitration, which shall be conducted in accordance with the CIETAC Arbitration Rules in force at the time arbitration is requested. The award is final and binding on both parties. 1 Article 30.2 of the Jams International Arbitration Rules and Procedures already prohibits the award of punitive damages “unless the parties agree otherwise. [or] unless a law requires that compensation be increased in some way.

2 The law relating to limitation of liability clauses differs considerably from one jurisdiction to another. Parties who wish to include such a clause in a contract must first consider the applicable law. “Any dispute arising out of or in connection with this Agreement shall be finally settled in accordance with the Arbitration Rules of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such Rules.” In some cases, the parties may wish to include in their dispute settlement clauses language that is not as comprehensive as that proposed in Rules 16.1 and 16.2, but that facilitates the efficient conduct of arbitration proceedings under the Agreement. Examples of such efficiency improvement clauses are given below. The ICDR Guide to drafting international dispute settlement clauses contains additional model provisions for “Dispute Resolution in Standard Stages”, “Negotiation-Arbitration”, “Mediation-Arbitration”, “Negotiation-Mediation-Arbitration”, “Concurrent Arbitration-Mediation”, “Time and Information Exchange Limitations”, confidentiality and other issues. Aaa`s main website includes a “ClauseBuilder tool” designed to make it easier for arbitration and mediation agreements to adapt to their individual needs. Note: The above are only examples. The fact is that the qualifications of the arbitrator(s) at the time of drafting the contractual clause must be taken into account. JAMS encourages the use of mediation and voluntary arbitration, which are not a condition for initial or continuing employment. JAMS does not comment on the applicability of the clauses relating to the condition of the employment relationship. If the courts ultimately decide that these clauses are unenforceable, or if laws or regulations prohibit their use, JAMS will comply with the decisions or laws in the applicable cases or jurisdictions. Without these prohibitions, JAMS accepts arbitration orders based on terms and conditions of employment clauses, provided that minimum standards are met, but does not encourage the use of such clauses.

The parties may also specify in the arbitration clause: 7. If an arbitrator appointed by either party is unable or refuses to participate in the arbitration or to participate in the dispute at any time after the commencement of the hearings, the two remaining arbitrators may continue the arbitration and render an arbitral award without a vacancy being deemed to have occurred if they determine, in their sole discretion, that: the omission or refusal of the other arbitrator to participate is without just cause. 1 Article 7 of the CIETAC Rules allows the parties to designate a place of arbitration outside China; however, this rarely happens. In a 2011 interview, Yu Jianlong, the Secretary General of CIETAC, answered a question on this point as follows: “Every year we have several cases in Hong Kong, and I remember one in Salzburg and another in Perth, Australia. We have also encountered cases where parties have chosen a seat in the United States. But it`s still rare. This is due in part to the fact that CIETAC mainly deals with China-related disputes, and a headquarters in China allows easier access to Chinese courts for parties who can provide assistance such as interim measures under China`s Arbitration Law. Alison Ross, An Interview with Yu, Global Arbitration Review (September 5, 2011). The following ad hoc arbitration clause (except for the provision that designates Atlanta as a place of arbitration) is taken from Jan Paulsson, Nigel Rawding & Lucy Reed, The Freshfields Guide to Arbitration Clauses in International Contracts (3rd ed., 2011): JAMS Comprehensive Rules provides for the appointment of an emergency arbitrator to process and rule on a request for emergency assistance.

(See general rule 2 (c)) If the parties to the agreement do not wish to have this procedure, they must subsequently unsubscribe in their arbitration agreement or by written agreement. The ICC Arbitration Rules provide for the application of an expedited procedure in the event of a lower value. If the parties wish to exclude the application of the expedited procedure provisions, they must expressly withdraw by adding the following wording to the above clause: In Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468 (1989), U.S. The Supreme Court has ruled that the Federal Arbitration Act (“FAA”) does not prejudge the California Arbitration Act in an intergovernmental dispute in which the parties have agreed that their contract is governed by California law. Therefore, if the parties wish to ensure that the FAA is applicable, regardless of the law they have established on substantive issues, the arbitration clause should provide that if the parties want the limit on the application of the Fast Track Rules to be higher than that set out in those rules, the following wording should be added to the above clause: When adapting the clause, care must be taken to avoid any risk of ambiguity. The unclear wording of the clause creates uncertainty and delays and can hinder or even impede the dispute resolution process. Specifying referee qualifications often works best in the context of a panel of three arbitrators, as it is possible in this context to require one of the panelists to have a certain level of technical expertise without limiting the entire panel to such a narrow range of experience.

This ensures that the desired technical expertise is represented on the panel while ensuring that the panel chair has extensive experience throughout the arbitration process. The standard clause may be amended to take account of the requirements of national law and any other specific requirements of the parties. In particular, the parties should always request binding arbitration. For example, for parties wishing to have ICC arbitration in mainland China, it is advisable to include in their arbitration clause an explicit reference to the ICC International Court of Arbitration. In today`s competitive market, most companies can`t afford or don`t want to afford the time, cost, and negative business consequences of traditional litigation. .