The Laws of Arbitration Agreement
Dispute resolution clauses in commercial agreements are never enchanting and, therefore, it is not astonishing that they are frequently termed as “midnight clauses,” that is, the last clauses to be considered during commercial negotiations, often late at night. In most cases, dispute resolution clauses often comprise provisions for mediation, negotiations, as well as arbitration or litigation. It is imperative to give careful thought to drafting the said provision, every step be lucidly delineated, and time limits be established for every step. In cases where arbitration is selected as the favored means of dispute resolution, the laws that are applicable to the various aspects of the arbitration process must be carefully considered.
It is uncontested that while parties to an agreement often specify the laws that govern the contract, on most occasions, they often fail to take into account the law governing agreement arbitration, which is legally dissociable from the substantive contract. In other words, arbitration clauses are independent of, and legally severable from, the substantive contract and, therefore, the contract and the arbitration clause are not always governed by the same law. The increased internationalization of arbitration, coupled with the different and often conflicting approaches espoused by various jurisdictions regarding the laws that govern arbitration agreements, may l…
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