Matthew Ghikas, FCIArb’s Post

The much anticipated second instalment to the arbitration series is here. This part addresses the drafting of arbitration agreements and identifies a number of issues that may arise if care is not taken. Of particular interest are the implications on enforceability and jurisdiction - two essential considerations for any party considering alternative dispute resolution mechanisms, and topics of my own particular interest.

💎 Understanding the Importance of Arbitration Agreements 💎 The arbitration agreement is fundamental to the arbitral process, serving several critical functions: 💎 It binds the parties to submit their disputes to binding arbitration. 💎 It grants the arbitral tribunal the jurisdiction to conduct proceedings and issue binding awards. 💎 It typically specifies the legal seat of the arbitration. 💎 It often outlines the law governing the arbitration agreement itself. 💎 Depending on its detail, it sets forth the rules and procedures for the arbitration. When parties agree to arbitration before a dispute arises—whether as a clause in a commercial contract or as a standalone agreement—it is known as an “arbitration clause” or “arbitration agreement.” Conversely, if the agreement is made after a dispute has occurred, it is termed a “submission agreement.” A common challenge with arbitration agreements is the lack of thoughtful drafting. Often, these agreements become “midnight clauses,” where parties, having successfully negotiated their commercial relationship, fail to adequately consider how disputes will be resolved. In summary, proactive and detailed drafting of arbitration agreements is essential. It ensures that as much as possible is agreed upon in advance, safeguarding our clients' interests before any disputes arise. #Arbitration #DisputeResolution #LegalPractice #ArbitrationAgreement #Lawyers #CommercialContracts #InternationalAgreements #CommercialArbitration #InternationalArbitration

Arbitration Key Takeaways 4: The Principle of Kompetenz-Kompetenz   The principle of Kompetenz-Kompetenz simply refers to the arbitral tribunal’s “competence to decide its own competence” which is based on the common sense in order to preserve the integrity of and to promote the cause of arbitration. Two essential theories allow kompetenz-kompetenz to properly function: (1) an arbitral tribunal is given the power to decide its own jurisdiction (kompetenz-kompetenz); and (2) the arbitration clause is treated as separate and independent from the remainder of the contract (separability). These two essential theories are clearly reflected in Article 16.1 of the UNCITRAL Model Law on International Commercial Arbitration, which provides that “The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause”. Challenges to arbitral jurisdiction can occur at one of three stages in the arbitration process: (1) at the initiation of the arbitral process; (2) during the arbitral process; or (3) after the final award. These challenges can occur in either of the following aspects: 1) Challenge that the arbitral tribunal does not have jurisdiction: This type of challenge shall be raised not later than the submission of the statement of defence; or 2) Challenge that the arbitral tribunal is exceeding the scope of its authority: This type of challenge shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. #KompetenzKompetenz #competence #jurisdiction #legalprinciple #legaldoctrine #challenge #statementofdefense #arbitraltribunal #arbitration #vietnaminternationalarbitration #uncitralmodellaw #arbitralproceedings #asialegal #businesslawfirm #vietnambusinesslawyer #mergerandacquisition #manda #arbitrator

Arbitration Key Takeaways 4: The Principle of Kompetenz-Kompetenz   The principle of Kompetenz-Kompetenz simply refers to the arbitral tribunal’s “competence to decide its own competence” which is based on the common sense in order to preserve the integrity of and to promote the cause of arbitration. #KompetenzKompetenz #competence #jurisdiction #legalprinciple #legaldoctrine #challenge #statementofdefense #arbitraltribunal #arbitration #vietnaminternationalarbitration #uncitralmodellaw #arbitralproceedings #asialegal #businesslawfirm #vietnambusinesslawyer #mergerandacquisition #manda #arbitrator

In today’s Wright Toolbox we discuss the question of whether a statute of limitations applies to arbitration. More specifically, if the arbitration agreement does not have a limitations period, does not incorporate one and the applicable state statute of limitations does not expressly provide that it applies to arbitrations, does the statute of limitations apply to arbitration? Read on to learn more: https://lnkd.in/gjB3NNpr Article by: Michael Stover

Interesting article from my colleagues regarding the importance of careful contract drafting and picking the appropriate arbitration regime. https://lnkd.in/g445n2hz

The consequences of a poorly drafted arbitration clause in contract law can be significant and costly. Our guide to drafting arbitration clauses helps parties avoid the common pitfalls, and have effective recourse to arbitration whenever disputes arise. Launched during #australianarbitrationweek, Nastasja Suhadolnik and Cara North breakdown the components of an arbitration agreement within a contract, helping parties create arbitration clauses that are enforceable, efficient and fit for purpose.

🔍 The Effect of an Arbitration Award 🔍 In arbitration, a final award effectively resolves the disputes presented to the tribunal, providing closure for the parties involved. However, it’s important to understand that if a new dispute arises between the same parties, the earlier decision does not automatically bind them. This holds true even if the new dispute is related to the initial one, as each arbitration is treated as a separate matter. That said, the principle of issue estoppel can apply. If a specific issue of fact or law was determined in the earlier arbitration and was fundamental to the award, that determination may be conclusive in future disputes. Additionally, since arbitration is based on a contractual agreement, an arbitral tribunal generally cannot issue orders against non-parties. The only exception is if a third party has expressed a clear intention to be bound by the tribunal's decision. Therefore, no arbitral award can impose rights or obligations on those not involved in the arbitration. Understanding these aspects is crucial for anyone engaged in arbitration, as they highlight both the power and limitations of an arbitration award. #Arbitration #DisputeResolution #LegalInsights #IssueEstoppel #ContractLaw

Our Associate, Mr. Harsh Vardhan shares his insightful views in an article titled, "Does the Arbitration Agreement automatically assign upon Assignment of a Contract: The Conundrum finally settled?" Read more at :- https://lnkd.in/giMETdy6 #knowledgesharing #knowledgemanagement #article #disputeresolution #arbitration #lawfirm #skvlawoffices

🌐 𝐄𝐱𝐩𝐥𝐨𝐫𝐢𝐧𝐠 𝐭𝐡𝐞 𝐃𝐨𝐜𝐭𝐫𝐢𝐧𝐞 𝐨𝐟 𝐓𝐫𝐚𝐧𝐬𝐧𝐚𝐭𝐢𝐨𝐧𝐚𝐥 𝐈𝐬𝐬𝐮𝐞 𝐄𝐬𝐭𝐨𝐩𝐩𝐞𝐥 𝐢𝐧 𝐀𝐫𝐛𝐢𝐭𝐫𝐚𝐭𝐢𝐨𝐧 🌐 Arbitration often involves parties from different jurisdictions resolving complex cross-border disputes. In such cases, the doctrines of res judicata and issue estoppel, which preclude re-litigation of claims and issues already decided in an earlier proceeding, become critical. At its core, this doctrine refers to the principle where an issue of fact or law that has been conclusively determined by a court or tribunal in one jurisdiction may be binding on parties in subsequent proceedings in another jurisdiction. In the context of arbitration, this doctrine serves to promote consistency and finality in the resolution of disputes that transcend national boundaries. The doctrine rests on the twin principles of finality of litigation and consistency of judgments across jurisdictions. In the absence of issue estoppel, parties can forum shop across borders, wasting time and resources relitigating matters already settled earlier. Moreover, they can potentially gain unfair advantage by getting inconsistent results on the same matter in different forums. 🎨 𝐈𝐥𝐥𝐮𝐬𝐭𝐫𝐚𝐭𝐢𝐨𝐧: Imagine a scenario where Company A and Company B, engaged in a contractual dispute, initiate arbitration proceedings in Country X. During the arbitration, an issue regarding the interpretation of a specific clause in the contract arises and is decisively resolved in favor of Company A by the arbitral tribunal. Later, Company B initiates legal proceedings in Country Y, seeking to challenge the same contractual provision. Here, the Doctrine of Transnational Issue Estoppel may prevent Company B from re-litigating the same issue that has already been conclusively determined in the arbitration in Country X. #Arbitration #LegalPrinciples #TransnationalDisputes #GlobalBusiness #LegalInsights