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Drafting Arbitration Agreements
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Prof. Dr. H. Ercument Erdem
Introduction
Arbitration agreements are the essential basis of international arbi-
tration. A successful arbitration starts with a successful arbitration
agreement. The arbitration agreement reflects the parties’ consent to
submit present or future disputes to arbitration. Unsuccessfully drafted
arbitration agreements can face enforcement difficulties, IBA
Guidelines for Drafting International Arbitration Clauses (“Guidelines”)
high and unnecessary costs, and delays. The Guidelines are designated
to provide assistance for the drafting of efficient and enforceable arbi-
tration agreements. The Guidelines provide basic and optional rules for
the drafting of arbitration agreements, multi-tier clauses, and multi-
party agreements.
The arbitration agreement can be in the form of an arbitration
clause inserted in the underlying agreement, or in a separate submis-
sion agreement.
Basic Guidelines
Wording of the Arbitration Agreement
The arbitration agreement put forward without hesitation the par-
ties’ agreement to settle the dispute through arbitration. The parties
should use mandatory language, such as ‘must’ or ‘shall,’ rather than
using permissive language like ‘may’ or ‘might.’ It is recommended to
use words such as ‘disputes’ or ‘differences,’ as compared to ‘claims.’
The scope of an arbitration agreement will frame the dispute that can
be referred to arbitration.
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Article of July 2015