Whether the arbitration involves a commercial or investment dispute, the work is always interesting.
Recently, I received a phone call from a prospective client looking for advice on whether or not to file an international arbitration claim.
This person had reviewed his company’s contract with the foreign-based party and learned that contract contained an international arbitration clause.
This was his first experience with the process.
Having gone over the basic elements of an international arbitration claim with him, I thought that it would make for a suitable blog post to educate those who are unfamiliar with international arbitration.
Thankfully, international arbitration is relatively straightforward and has quickly become the dispute resolution mechanism of choice around the world.
And that’s hardly a surprise.
Relative to litigation, arbitration is more predictable, efficient and cost effective.
Elements of an International Arbitration Claim
I’ve outlined the basic elements of an international arbitration claim below.
Be sure to scroll down for an embedded sample international arbitration claim so that you can follow along with a real world example.
Whether the claims arises out of an investment or commercial dispute, the elements largely remain the same.
1. Introduction— Get right to the heart of the dispute in the first paragraph. Tell the arbitrator(s) exactly what the dispute is about. In the example below, after reading just the first line, the arbitrator(s) has a firm handle on the nature of the dispute. In addition, you’ve already painted a powerful picture of the Respondent’s offending conduct.
2. Demand for Arbitration–Here you’ll cite the law and all legal predicate for referring the matter to arbitration. Be sure to cite the precise article(s) of the law that is to be applied. Laying the legal foundation early-on goes a long way towards building your credibility with the panel.
3. Name and Contact Details of the Parties–for practical considerations include all correspondence details of both claimant and respondent. In addition to name and address, it is particularly helpful to also include email addresses.
4. Identification of the Arbitration Agreement if Invoked–Cite the arbitration clause (or treaty in an investor-State dispute) that calls for the resolution of the dispute in arbitration.
5. Reference to Document Upon Which Dispute is Based–Cite the Agreement and any applicable law triggered by the respondent’s conduct.
6. Brief Description of Claim and the Amount Involved–This is your opportunity to provide the arbitrator(s) with a narrative of how the dispute arose. Because this is the longest section of any claim, it’s a good idea to break this section into sub-sections to serve as a road map for the narrative.
In the example below, you’ll note that the subsections provide an easy road map for the arbitrator(s) to follow the narrative of events, as well as the applicable law(s).
7. Relief or Remedy Sought–state the amount in dispute. If applicable, be sure to include claims for declaratory and injunctive relief, actual damages, interest and attorneys fees.
8. Notification of Appointment of Arbitrator—Does the applicable arbitration agreement call for a single arbitrator or a tribunal? In the example below, a tribunal is called for. In addition, if you already have a designated arbitrator, you may identify and appoint that person in this section.
Be sure to include all the elements outline above, and you’ll be well on your way to drafting a powerful international arbitration agreement.
For additional practice tips, also be sure to read my earlier post 7 Ways to Bullet Proof Your International Arbitration Agreement.