Arbitration Clauses for International Contracts - 2nd Edition

Price: $150.00 370 pages. 1 Hardcover Volume. Appendices. Index. Table of Cases. CD-Rom. Published July 2007
ISBN-13: 978-1-933833-06-4 / ISBN-10: 1-933833-06-8

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Table of Contents

About the Book:
This book, by a leading international arbitration practitioner, offers suggested language for every option that a drafter of an international arbitration 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 regular 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 resort 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 resolution per 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.

"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, Partner, 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

 "This book, by an experienced international arbitration practitioner, offers suggested language for
almost every option that a drafter of an international arbitration clause may need. I know of no other
such comprehensive collection of workable language, presented in logical sequence so accessibly.
This book should be a regular reference and valuable resource for both in-house counsel and law
firm practitioners."
— late Michael Hoellering, former General Counsel of the American Arbitration Association (AAA)

"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

About the Author:
Paul Friedland is a Partner at White & Case LLP and Co-Chair of the firm's International Arbitration Practice Group. He is a prominent international arbitration practitioner, with 20 years of experience as counsel in international arbitrations before the ICC, AAA and ICSID. Friedland also regularly advises clients on drafting dispute resolution clauses, and serves as an arbitrator. A frequent writer and speaker on international arbitration topics, Friedland is currently Chair of the AAA’s Arbitration Practice Committee. He is a member of the bars of New York and Paris, and has been an active trial lawyer in federal and state courts in New York. Friedland is a graduate of Yale and Columbia (J.D., Kent Scholar, Law Review).

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