Below are a number of model arbitration clauses from various arbitral institutions that can be used to provide for arbitration in Atlanta. Also provided below are two sample clauses providing for ad hoc arbitration in Atlanta.
The Atlanta International Arbitration Society (AtlAS) does not administer arbitration proceedings or offer a set of arbitration rules. Parties designating an Atlanta venue for arbitration must do so under the auspices of one of a number of international arbitral institutions or through an ad hoc proceeding using either the UNCITRAL Arbitration Rules or a procedure custom-made by the parties for purposes of their particular transaction or dispute.
In using and adapting the clauses below, parties should review the cautionary note at the bottom of this webpage and be aware that there is no one-size-fits-all approach to drafting an effective arbitration agreement. A useful introduction to the topic is the IBA Guide to Drafting International Arbitration Clauses.
American Arbitration Association/International Centre for Dispute Resolution (AAA/ICDR)
“Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules.
The parties should consider adding:
- The number or arbitrators shall be (one or three);
- The place of arbitration shall be [Atlanta, Fulton County, State of Georgia, United States of America].
- The language(s) of the arbitration shall be ____________.”
The ICDR Guide to Drafting International Dispute Resolution Clauses includes additional model provisions for “Model Step Dispute Resolution” (providing for negotiation or mediation before initiating arbitration), “Negotiation-Arbitration”, “Mediation-Arbitration”, “Negotiation-Mediation-Arbitration”, “Concurrent Arbitration-Mediation”, “Limitations on Time and Information Exchange”, confidentiality and other matters. The main AAA website includes a “ClauseBuilder tool” that is designed to assist tailoring arbitration and mediation agreements to their individual needs.
China International Economic and Trade Arbitration Commission (CIETAC)
“Any dispute arising from or in connection with this Contract shall be submitted to China International Economic and Trade Arbitration Commission (CIETAC) for arbitration which shall be conducted in accordance with the CIETAC’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties.”
The parties should consider adding:
- The number or arbitrators shall be (one or three);
- The place of arbitration shall be [Atlanta, Fulton County, State of Georgia, United States of America].1
- The language(s) of the arbitration shall be ____________.
German Institution for Arbitration (DIS)
“All disputes arising in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law.
- The place of arbitration is [Atlanta, Fulton County, State of Georgia, United States of America].2
- The arbitral tribunal consists of _____ [number of] arbitrators;
- The substantive law of _______________ is applicable to the dispute;
- The language of the arbitral proceeding is ___________________________.”
Henning Mediation & Arbitration Service
“Any controversy or claim arising out of or relating to this Agreement or the breach thereof, shall be settled by binding arbitration administered by Henning Mediation & Arbitration Service, Inc. (HMA) in accordance with its rules, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration hearing and all proceedings in connection therewith shall take place in Atlanta, Georgia. The arbitration shall be conducted by one or more arbitrators selected by the parties from HMA panel of arbitrators, or, if they are unable to agree on the selection, by one or more arbitrators appointed by HMA. The arbitration hearing shall be commenced within 90 days of the filing of a Demand for Arbitration by either party, and the award shall be rendered within 30 days of the conclusion of such hearing.”
International Chamber of Commerce (ICC)
“All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.”
The parties may also wish to stipulate in the arbitration clause:
- the law governing the contract;
- the number of arbitrators;
- that the place of arbitration shall be [Atlanta, Fulton County, State of Georgia, United States of America]; and
- the language of the arbitration.
If the parties do not want the Emergency Arbitrator Provisions of the ICC Rules to apply, they must expressly opt out by using the following provision:
“All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The Emergency Arbitrator Provisions shall not apply.”
International Institute for Conflict Prevention and Resolution (CPR)
CPR Rules for Administered Arbitration of International Disputes:
“Any dispute arising out of or relating to this contract, including the breach, termination or validity thereof, shall be finally resolved by arbitration in accordance with the International Institute for Conflict Prevention and Resolution (“CPR”) Rules for Administered Arbitration of International Disputes by [a sole arbitrator] [three arbitrators, of whom each party shall designate one, with the third arbitrator to be appointed by CPR] [three arbitrators, of whom each party shall designate one, with the third arbitrator to be designated by the two party- appointed arbitrators] [three arbitrators to be appointed in accordance with the screened appointment procedure provided in Rule 5.4] [three arbitrators, none of whom shall be designated by either party]. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. The seat of the arbitration shall be (city, country). The language of the arbitration shall be (language).”
Please note that additional model clauses, including submission agreement and the multi-step clause, are available on CPR’s website at http://www.cpradr.org/
“Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal will consist of [three arbitrators/one arbitrator]. The place of arbitration will be [Atlanta, Fulton County, State of Georgia, United States of America]. The language to be used in the arbitral proceedings will be [language]. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.”
The JAMS website sets forth a number of optional provisions relating to: “Resolution Prior to Arbitration”, “Arbitrator Qualifications”, “Party-Appointed Arbitrators”, “Confidentiality”, “Governing Law”, “Punitive Damages”, “Limitation of Liability”, “Fees and Costs to Prevailing Party”, “Appeal”, “Measures to Enhance Arbitration Efficiency,” the “JAMS Optional Expedited Arbitration Procedures”, and “More Limited Efficiency-Enhancing Provisions.” The JAMS International Arbitration Guidelines provide additional drafting tips.
London Court of International Arbitration (LCIA)
Model Clause for Future Disputes:
“Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.
The number of arbitrators shall be [one/three].
The seat, or legal place, of arbitration shall be [the State of Georgia, United States of America, in the City of Atlanta, Fulton County].3
The language to be used in the arbitral proceedings shall be [___________].
The governing law of the contract shall be the substantive law of [______________].”
Model Clause for Existing Disputes
“A dispute having arisen between the parties concerning [ ], the parties hereby agree that the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules.
The number of arbitrators shall be [one/three].
The seat, or legal place, of arbitration shall be [Atlanta, Fulton County, State of Georgia, United States of America].
The language to be used in the arbitral proceedings shall be [ ].
The governing law of the contract [is/shall be] the substantive law of [ ].”
Stockholm Chamber of Commerce (SCC)
“Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.”
The parties should consider adding:
- The arbitral tribunal shall be composed of ____ arbitrators (a sole arbitrator).
- The seat of the arbitration shall be the [Atlanta, Fulton County, State of Georgia, United States of America.4
- The language to be used in the arbitral proceedings shall be ________________.
- This contract shall be governed by the substantive law of ____________ (insert jurisdiction).
The SCC website also includes model clauses providing for:
- Expedited arbitration (a fast-track procedure for smaller and medium sized claims);
- Expedited arbitration or full-scale arbitration depending on the circumstances;
- Expedited arbitration or full-scale arbitration depending on the amount in dispute; and
- Mediation, followed by arbitration in the event the parties cannot agree on mediation or mediation is unsuccessful.
World Intellectual Property Organization (WIPO)
“Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as noncontractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules. The arbitral tribunal shall consist of [three arbitrators] [a sole arbitrator]. The place of arbitration shall be [Atlanta, Fulton County, State of Georgia, United States of America]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim shall be decided in accordance with the law of [specify jurisdiction].”
Sample Clauses Providing for Ad Hoc Arbitration
An ad hoc arbitration is one not administered by an institution (for example, the ICDR, ICC or JAMS). The parties must therefore make their own arrangements with respect to the selection of arbitrators, arbitral procedures, administrative support and other aspects of the arbitration. Parties proceeding on an ad hoc basis will often incorporate the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules into their agreement. Below are two sample clauses, one which incorporates the UNCITRAL Arbitration Rules and which does not. Parties are not advised to craft an ad hoc arbitration provision without the advice of experienced counsel.
United Nations Commission on International Trade Law (UNCITRAL) – Ad Hoc Arbitration
“Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force.”
The parties should consider adding:
- The appointing authority shall be _______________ (name of institution or person);
- The number of arbitrators shall be _____ (one or three);
- The place of arbitration shall be [Atlanta, Fulton County, State of Georgia, United States of America];
- The language(s) to be used in the arbitral proceedings shall be ______________.
The ICC recommends that in the event if the parties seek to have the ICC serve as the appointing authority, the following provision should be used in lieu of subclause (a) above:
“The appointing authority shall be the ICC acting in accordance with the rules adopted by the ICC for this purpose.”
If the parties have not agreed on an appointing authority or if the appointing authority fails to appoint within 60 days, the UNCITRAL Rules empower the Secretary-General of the Permanent Court of Arbitration to designate an appointing authority.
Ad Hoc Arbitration Provision – Non-UNCITRAL Rules
The following ad hoc arbitration clause (with the exception of the provision designating Atlanta as the place of arbitration) is taken from Jan Paulsson, Nigel Rawding & Lucy Reed, The Freshfields Guide to Arbitration Clauses in International Contracts (3d ed., 2011):
1. Any dispute, difference, controversy or claim arising out of or in connection with this Agreement shall be referred to and determined by arbitration in [Atlanta, Fulton County, State of Georgia, United States of America].
2. The party initiating recourse to arbitration (hereinafter referred to as “the claimant”) shall give to the other party (hereinafter referred to as “the respondent”) a notice of arbitration, which notice shall include:
(i) a demand that the matter be referred to arbitration;
(ii) the names and addresses of the parties;
(iii) a reference to this arbitration clause; and
(iv) a description of the nature and circumstances of the dispute giving rise to the claim(s) and a statement of the relief sought including, so far is possible, an indication of any amount(s) claimed.
3. The arbitral tribunal (“the tribunal”) shall be composed of three arbitrators appointed as follows:
(i) each party shall appoint an arbitrator, and the two arbitrators so appointed shall appoint a third arbitrator who shall act as president of the tribunal;
(ii) if either party fails to appoint an arbitrator within 30 days of receiving notice of the appointment of an arbitrator by the other party, such arbitrator shall be at the request of that party be appointed by … [the appointing authority];
(iii) If the two arbitrators to be appointed by the parties fail to agree upon a third arbitrator within 30 days of the appointment of the second arbitrator, the third arbitrator shall be appointed by the … [appointing authority] at the written request of either party;
(iv) should a vacancy arise because any arbitrator dies, resigns, refuses to act, or becomes incapable of performing his functions, the vacancy shall be filled by the method by which that arbitrator was originally appointed. When a vacancy is filled the newly established tribunal shall exercise its discretion to determine whether any hearings shall be repeated.
4. As soon as practicable after its constitution, the tribunal shall convene a meeting with the parties or their representatives (either in person or by telephone) to determine the procedure to be followed in the arbitration.
5. The procedure shall be as agreed by the parties or, in default of agreement, as determined by the tribunal. However, the following procedural matters shall in any event be taken as agreed:
(i) the language of the arbitration shall be … [language];
(ii) the tribunal may in its discretion hold a hearing and make an award in relation to any preliminary issue at the request of either party and shall do so at the joint request of both parties;
(iii) the tribunal shall hold a hearing, or hearings, relating to substantive issues unless the parties agree otherwise in writing;
(iv) the tribunal’s award shall be final and binding on the parties. By agreeing to arbitration, the parties undertake to carry out any award immediately and without delay; and the parties also waive irrevocably their right to any form of appeal, review or recourse to any State Court or other judicial authority, insofar as such waiver may be validly made.
6. In the event of default by either party in respect of any procedural order made by the tribunal, the tribunal shall have power to proceed with the arbitration and to make its award.
7. If an arbitrator appointed by one of the parties fails or refuses to participate in the arbitration or to participate in the substance of the dispute at any time after the hearings have started, the remaining two arbitrators may continue the arbitration and made an award without a vacancy being deemed to arise if, in their discretion, they determine that the failure or refusal of the other arbitrator to participate is without reasonable excuse.
8. Any award or procedural decision of the tribunal shall if necessary be made by a majority and, in the event that no majority may be formed, the presiding arbitrator shall proceed as if he were a sole arbitrator.
9. Without prejudice to the availability of such remedies in aid of arbitration as may be available under the jurisdiction of a competent court or other judicial authority, the arbitral tribunal shall have full authority to grant interim measures of protection and to award damages for the failure of a party to respect the arbitral tribunal’s orders to that effect.
10. By agreeing to arbitration under this clause, the Parties shall not be precluded from seeking interim measures of protection from a court of competent jurisdiction or other judicial authority, subject always to satisfying the relevant procedural or other requirements imposed by such court or other judicial authority.
[11. The parties agree that the arbitration shall be conducted according to the IBA Rules of Evidence as current on the date of [this agreement/the commencement of the arbitration].]
CAUTIONARY NOTE APPLICABLE TO ALL SAMPLE CLAUSES
The foregoing information is being provided for informational and educational purposes only. AtlAS is a nonprofit corporation that does not engage in the practice of law, and this website is not intended to create an attorney-client relationship. No legal advice is being given. A mal-adapted dispute resolution provision is worse than no dispute resolution provision at all. You should not act or rely on the information contained in this website without first seeking the advice of a legal advisor in your jurisdiction. The information contained in this website may not be current, especially since the model arbitration clauses of the various arbitral institutions sometimes change. This website is not routinely updated to take account of these changes. The legal effect, appropriateness and advisability of the clauses set forth on this website should be evaluated in the specific context of the parties’ transaction and/or dispute and whatever law is applicable. AtlAS makes no representations or warranties regarding the enforceability of any of the arbitration clauses set forth on this website.
1 Article 7 of the CIETAC Rules authorizes parties to designate a place of arbitration outside China; however, this rarely occurs. In an interview given in 2011, Yu Jianlong, the Secretary-General of CIETAC, responded to a question on this point as follows: “Every year we have several cases seated in Hong Kong and I recall one in Salzburg and another in Perth, Australia. We have also come across cases where the parties chose a seat in the U.S. But this is still rare. This is partly due to the fact that CIETAC deals primarily with disputes that are related to China and a seat in China allows the parties easier access to the Chinese courts, which can provide support such as interim measures under the Chinese Arbitration Law.” Alison Ross, An Interview with Yu, Global Arbitration Review (Sept. 5, 2011).
2 The annotated version of the DIS model arbitration clause contemplates the possibility of DIS-administered arbitrations taking place outside Germany. See Annotated DIS Rules, n. 7; see also DIS Rules, § 21. A few such arbitrations have, in fact, taken place. See DIS-Statistics 2009.
3 The LCIA Rules provide that, “The parties may agree in writing the seat (or legal place) of their arbitration. Failing such a choice, the seat of arbitration shall be London ….” See LCIA Rules, Art. 16.1.
4 Article 20 of the SCC Rules permits parties to designate a seat of arbitration. SCC-administered arbitrations occasionally take place outside Sweden, albeit rarely. See Finn Madsen, Commercial Arbitration in Sweden 202, n. 124 (3d. ed., 2007).