178 / 522
An arbitration agreement would include, all disputes “arising out
of,” “in connection with,” or “relating to” the contract. Such broad
terms are important to avoid arguments regarding whether the dispute
is within the scope of the arbitration agreement. There can be excep-
tional circumstances where the parties will prefer to exclude various
disputes, such as pricing and technical disputes.
Ambiguity should be avoided, primarily to supersede ineffective
agreements and to eliminate problematic results, such as enforcement
difficulties. It is crucial to understand the parties’ intentions in the arbi-
tration agreement.
Parties should decide between Institutional or Ad Hoc Arbitration
In ad hoc arbitrations, the parties have to choose their arbitrators,
or address a procedure for their appointment. The parties should also
decide upon procedural rules, place of arbitration, language, etc. The
parties can prefer to use already drafted rules such as UNCITRAL
Arbitration Rules for assistance.
In institutional arbitrations, in general terms, the chosen institution
has the duty to organize the arbitration. The institution provides rules
for procedural matters that assist parties
1
.
The parties should consider in determining the institution the rep-
utation and trustworthiness, rules of the institution, lists of the arbitra-
tors, as well as powers granted to the institution. The parties should
select governing arbitration rules and use the model clause provided in
these rules. The preferred arbitration rules will form the procedural
scheme. If the parties fail to make such designation, procedural matters
have to be included in the arbitration agreement, which is not general-
ly desired. When the parties adopt the model clause recommended by
the selected arbitration rules, they can add new points, but should not
remove any points. Such new additions shall be parallel with the lan-
guage of the selected arbitration rules.
The parties are recommended not to limit the scope of disputes,
and it is suggested that they draft the scope in broad terms, excluding
special circumstances.
162
NEWSLETTER 2015
1
See Article 6 of the ICC Rules.