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Negotiation

 NEGOTIATION/ARBITRATION CLAUSE

"In the event of any controversy or claim arising out of or relating to this contract, or a breach thereof, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a satisfactory solution. If they do not reach settlement within a period of 60 days, then, upon notice by any party to the other(s), any unresolved controversy or claim shall be settled by arbitration administered by IIIMA in accordance with the provisions of International Arbitration Rules.”

1. “The language(s) of the arbitration shall be ENGLISH.”

The model negotiation/arbitration clause above provides a single negotiation “step”. Parties sometimes provide multiple steps, by way of an “issue escalation” clause, in an attempt to encourage the surfacing and resolution of problems quickly during an ongoing project. Again, parties in those circumstances should be careful to provide time frames for moving the negotiation to the next level to avoid delay.

MEDIATION/ARBITRATION CLAUSE

The clause is as follows:

"In the event of any controversy or claim arising out of or relating to this contract, or a breach thereof, the parties hereto agree first to try and settle the dispute by mediation, administered by the IIIMA by its Mediation Rules. If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim arising out of or relating to this contract shall be settled by arbitration in accordance with the International Arbitration Rules which  opted by the parties. The language(s) of the arbitration shall be English.”

It should be noted that parties could agree to mediate at any time, even in the absence of a future disputes clause providing for mediation. Indeed, disputing parties frequently find that mediation is particularly effective when conducted against the deadline of a pending arbitration hearing.

MODEL NEGOTIATION/MEDIATION/ARBITRATION CLAUSE

Parties to commercial contracts, most particularly those involving strategic commercial relationships, will sometimes provide for both negotiation and mediation as precursors to arbitration. The intent is that the parties should try to solve the problem themselves first, and, if that proves difficult, utilise the services of a third party mediator, before resorting to a third party decision-maker/arbitrator.
Once again, time limits or an opt-out provision should be considered to avoid delay tactics.
The "Step-Clause" for Negotiation/Mediation/Arbitration is as follows:

"In the event of any controversy or claim arising out of or relating to this contract, or the breach thereof, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If they do not reach settlement within a period of 60 days, then either party may, by notice to the other party and IIIMA, demand mediation under the Mediation Rules of IIIMA for Dispute Resolution. If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim arising out of or relating to this contract shall be settled by arbitration administered by the IIIMA in accordance with Opted International Arbitration Rules/Domestic arbitrational Rule. “The language(s) of the arbitration shall be English.”

IIIMA ADMINISTRATION UNDER UNCITRAL RULES

Certain parties, including most especially nation states, may feel more comfortable in contracting for application of the UNCITRAL Arbitration Rules. IIIMA offers the following model for providing administered UNCITRAL procedures.

“Any dispute, controversy, or claim arising out of or relating to this contract, or the breach, termination, or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules in effect on the date of this contract.
The appointing authority shall be the IIIMA.

The case shall be administered by IIIMA in accordance with its “Procedures for Cases under the UNCITRAL Arbitration Rules”. “The language(s) of the arbitration shall be English.”

LIMITATIONS ON TIME AND INFORMATION EXCHANGE

The parties may agree to amend the rules to suit their particular needs. For example, they may wish to restrict or expand time limits provided for in rules, limit information exchanges or change other aspects of the process. They may do so by addressing those issues in their dispute resolution clause.

The following clause limits the time frame in arbitration:
“The award shall be rendered within [9] months of the commencement of the arbitration, unless such time limit is extended by the arbitrator.”

The parties should be wary of the dangers inherent in setting artificial deadlines. If time frames can’t be met, the ability to enforce the award may be compromised. The alternative clause set forth below addresses the consequences of a “late” arbitration.

“It is the intent of the Parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within [120] days from the date the arbitrator(s) are appointed. The arbitral tribunal may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award.”

The parties may limit information exchange by using the following clause:
“Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents explicitly referred to by a party for the purpose of supporting relevant facts presented in its case, carried out expeditiously.”

There is a danger in limiting the exchange of information at the time of contracting. In the event that more information exchange would be advantageous to a party in a particular dispute, that additional evidence cannot be taken without further agreement.

The parties should always exercise caution when restricting arbitration procedures and arbitral authority. Doing so may prevent international arbitrators from doing what they usually do so well, managing the process according to the immediate needs of the parties.

OTHER DRAFTING CONSIDERATIONS

Contracting parties might also consider adding language to address specific procedural or remedial concerns. So, for example, notwithstanding the availability of emergency and interim relief under Rules, parties may wish to underscore their expectation that such relief will be available by providing language to that effect in the dispute resolution clause. The type of contract may also call for additional language. So, for example, parties to an exclusive information contract or sensitive technology contract may wish to consider a confidentiality provision in their agreement.