Stand-Alone Clauses

Basic Single Arbitrator Clause

"[Subject to [ADR],] any dispute arising out of or connected with this Agreement, including a dispute as to the validity or existence of this Agreement and/or this clause [number], shall be resolved by arbitration with seat (or legal place) in [ insert choice of seat ] conducted in the [Language ] by a single arbitrator [see Number of Arbitrators ]."

This precedent is a basic clause that will result in an ad hoc arbitration conducted by a single arbitrator in the stated location in accordance with the arbitration law of the seat. Not to be adopted without first obtaining local advice on the arbitration law concerned and without careful consideration as to whether ad hoc arbitration is appropriate (see Institutional Rules or Not?). See Procedure for guidance on the procedure likely to be followed. We recommend excluding any right of appeal against the arbitration award in order to minimise costs and suggest adding the following to the end of the clause:

"the parties agree to waive any right of appeal against the arbitration award".

In particular, advice should be sought on what the law of the seat provides for the appointment of the single arbitrator in the absence of agreement between the parties. Recourse to the law of the seat in this respect can almost always be avoided by adding the following to the above clause:

"Unless otherwise agreed between the parties:

(i) in the event of a failure by the parties to agree on the sole arbitrator within 30 days of one party calling upon the other to do so, the arbitrator shall be appointed by the [London Court of International Arbitration ("LCIA")/ International Court of Arbitration of the International Chamber of Commerce]; and

(ii) the arbitrator shall be and remain independent and impartial of each party."

Basic Three-Arbitrator Clause

"[Subject to [ADR],] any dispute arising out of or connected with this Agreement, including a dispute as to the validity or existence of this Agreement and/or this clause [number], shall be resolved by arbitration with seat (or legal place) in [insert choice of seat ] conducted in the [Language ] by three arbitrators [see Number of Arbitrators] who shall be appointed as follows:

(i) each party shall appoint an arbitrator, and if one party fails to appoint an arbitrator within 30 days of receiving notice of the appointment of an arbitrator by the other party then that arbitrator shall be appointed by the [ London Court of International Arbitration ("LCIA")/International Court of Arbitration of the International Chamber of Commerce ("ICC International Court of Arbitration")];

(ii) the third arbitrator, who shall act as the presiding arbitrator of the tribunal, shall be chosen by the two arbitrators appointed by or on behalf of the parties. If the third arbitrator is not chosen and appointed within 30 days of the date of appointment of the later of the two party-appointed arbitrators to be appointed, the third arbitrator shall be appointed by the [LCIA / ICC International Court of Arbitration];

(iii) each arbitrator shall be and remain independent and impartial of each party, [and no arbitrator shall be of the same nationality as any party];

[(iv) for the purposes of (i), where there are multiple parties as claimant or as respondent, the multiple parties jointly, whether as claimant or as respondent, shall appoint an arbitrator;

(v) In the event of any failure to constitute the tribunal pursuant to (iv) in circumstances in which it applies, the [LCIA/ICC International Court of Arbitration] shall, at the request of any party, constitute the tribunal and, in doing so, may revoke any appointment already made and appoint or reappoint any or all of the three arbitrators and designate one of them as the presiding arbitrator]."

This precedent is a basic clause, that will result in an ad hoc arbitration conducted by three arbitrators in the stated location in accordance with the law of the seat. See Procedure for guidance on the procedure likely to be followed. Again, not to be adopted without first obtaining local advice on the arbitration law concerned and without careful consideration as to whether ad hoc arbitration is appropriate (see Institutional Rules or Not?).

The last part of paragraph (iii) may be inappropriate in normal commercial contracts, but it can be important in contracts with States. Its inclusion will prevent the State from appointing as its arbitrator its own national, who may not be predisposed to finding against it:. This provision should be difficult for a state to resist at the negotiation stage but will be valuable if a dispute arises: if facing a genuinely independent tribunal, a state is likely to be more willing to do a deal rather than go through arbitration.

Where disputes involving multiple (i.e. more than two) parties are likely to be resolved pursuant to this ad hoc clause, insert paragraphs (iv) and (v). These are designed to ensure that the tribunal is fairly constituted as between claimant and respondent “sides” in a three-arbitrator situation (see Number of Arbitrators for more).