Arbitration Solicitors and Agreements

Daniel CalvoBlog

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Arbitration is a powerful alternative dispute resolution (ADR) method that is often used to settle international commercial disputes. Given the complexities of arbitration proceedings and enforcement, having an experienced Arbitration Solicitor advise you is imperative.

Arbitration agreements are final and binding.

Parties can choose the jurisdiction in which they wish the arbitration to take place, the rules governing the procedure, and the appointment of the Arbitrator/s. One of the reasons arbitration is a preferred method of dispute resolution for commercial entities is that Arbitration Awards can be enforced internationally. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the “New York Arbitration Convention” or the “New York Convention”, is one of the key instruments in international arbitration.

The New York Convention applies to the recognition and enforcement of foreign arbitral awards and the referral by a court to arbitration.

Arbitration in England and Wales is governed by the Arbitration Act 1996; therefore, if you plan to enforce an award in this jurisdiction, you must have regard for the Arbitration Act 1996 from the outset.

Why is it crucial to have a Solicitor draft an Arbitration Agreement?

Parties that enter into Arbitration Agreements are often involved in contracts worth millions, sometimes billions of pounds (or dollars) involving projects or deals spanning multiple jurisdictions. For this reason alone, it is vital to ensure the Agreement is drafted by experienced Arbitration Solicitors.

Arbitration Agreements set out essential terms such as:

  • How the Arbitrator will be selected.
  • Where the arbitration will be heard (the seat of arbitration).
  • What law will govern the arbitration.
  • Whether the arbitration tribunal comprises one member or three.

The former Secretary General of the International Chamber of Commerce (ICC) International Court of Arbitration, Frederic Eisemann, identified the term’ pathological clause’ in relation to Arbitration Agreements in an article written in 1974 (La clause d’arbitrage pathologique, Commercial Arbitration Essays in Memoriam Eugenio Minoli, UTET 1974). Mr Eisemann stated that a ‘pathological clause’ was one that was so badly written that it could be invalidated and therefore futile.

He went on to state four criteria that must be met to ensure a clause in an Arbitration Agreement is effective.

A clause should:

  • Produce mandatory consequences for the parties.
  • Exclude the intervention of state courts in the settlement of the dispute.
  • Give powers to the arbitrators to resolve the disputes likely to arise between the parties.
  • Permit a procedure which leads, under the best conditions of efficiency and rapidity, to the rendering of an enforceable award.

The Arbitration Agreement is core to successful arbitration and extremely complicated to draft. Therefore, it is essential to have it written by an experienced Arbitration Solicitor who understands the arbitration process and how it applies to your market sector and particular organisation.

What part does a Solicitor play in an Arbitration hearing?

In addition to drafting the Arbitration Agreement, an Arbitration Solicitor plays a significant role before, during, and after the arbitration itself. They will:

  • Advise and assist with the selection of Arbitrators (in line with the terms of the Arbitration Agreement).
  • Advise on the law governing the arbitration and how this will affect your position.
  • Inform you about arbitration costs.
  • Gather evidence and witness statements.
  • Prepare written submissions that are presented to the Arbitrator.
  • Explain the award to you and advise you on enforcement options, including the provisions of international conventions.

Who pays for arbitration costs, including the legal fees?

In England and Wales, parties to an arbitration can agree in advance on how costs are allocated, subject to some exceptions; however, this is rare in practice. The Arbitral Tribunal can award costs.  Section 61(1) of the Arbitration Act  1996 provides that:

“the tribunal may make an award allocating the costs of the arbitration as between the parties, subject to any agreement of the parties.”

It is generally accepted that the Tribunal will award costs unless the parties agree otherwise. In most cases, arbitrations are conducted by the parties and Tribunal on the basis that the Tribunal will make an award dealing with the allocation of costs.

Final words

Domestic and International commercial disputes are by nature complex and often involve multiple claims and counter-claims. Arbitration provides a straightforward, confidential way of resolving matters. An Arbitration Solicitor will advise you on a strategy before Arbitration proceedings, markedly increasing your chances of a successful outcome and preserving necessary commercial relationships.

To discuss any points raised in this article, please call us on +44 (0) 203972 8469 or email us at

Note: The points in this article reflect sanctions in place at the time of writing, 12 April 2024. This article does not constitute legal advice. For further information, please contact our London office.

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