Arbitration Agreement Draft

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Where the parties do not designate the appointing authority, the courts may make such a finding at the place of arbitration. In accordance with Article 6 of the UNCSD Rules, the Secretary-General of the Permanent Court of Arbitration in The Hague shall designate the invested authority of the Working Group if the parties fail to do so. A decision-making authority may be a court, institution, commercial or professional organisation or other neutral body. The same is becoming a preferred means and a matter of interpretation by the courts to make India an appropriate seat for arbitration worldwide. Optional clauses In their credit agreements, banks have traditionally introduced jurisdiction clauses giving them the right to initiate proceedings against the borrower in the most diverse legal orders, while obliging the borrower, when he wishes to take legal action, to bring a complaint only in the courts of a State, often that of the domicile of the bank. The UNCITRAL rules do not exclude the right of appeal. The absence of such a right depends on the law of the seat of the arbitral tribunal and, if the parties wish to exclude the right, they must state this explicitly in their clause. Article 26.9 of the LCIA Rules and Article 28(6) of the CCI Rules exclude any form of appeal or recourse by the courts. In making such a decision, the parties should take into account strategic, practical and legal criteria. Strategic criteria include neutrality and efficiency.

In practice, neutrality is guaranteed by the seat of the arbitration in a country that is not bound to either party. Efficiency is linked to the enforcement of the arbitral award. Special situations Multiparty contracts The first question that the author of an arbitration agreement should ask himself is how many parties there are in the contract. If the answer is greater than two, he must consider very carefully how the court should be appointed, taking into account the fundamental requirement that each party to the proceedings be treated equally. It is unacceptable, for example, that one party can appoint its own arbitrator, with the other parties being obliged to accept a joint appointment by the appointing authority, even if they have agreed to this in the arbitration clause. It is possible to adjust the clause in such a way as to downgrade certain categories of disputes with a view to settlement, for example by identifying experts. This can be useful if the contract contains highly technical conditions. . . .

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