A jurisdiction clause should be included if the parties wish all disputes arising from their agreement to be decided by one or more specific national courts. A party who expressly submits to the courts of a particular jurisdiction will find it difficult to argue that these courts are not the appropriate place for the negotiation of disputes. Structured negotiations and/or mediation provide parties with alternatives to arbitration and litigation and offer faster, more cost-effective and flexible methods of dispute resolution. Mediation, a process in which a neutral third party (the mediator) attempts to “break” a settlement agreement between the parties, is particularly effective in helping the parties to the dispute avoid costly disputes or arbitrations. It is increasingly common for these methods to be provided for by inclusion in a progressive dispute settlement clause (also known as a “graduated clause” or “escalation clause”). Such clauses make it possible to gradually escalate a claim. For example, a typical graduated clause would provide for negotiations at different levels within each party`s activities, mediation, and then litigation or arbitration. If carefully drafted, they can provide the parties with a commercial and cost-effective dispute settlement mechanism. Conversely, poor wording can add an extra layer of bureaucracy and, in the worst case, lead to parties not being properly referred to the courts or arbitral tribunal. Further instructions on how to draft these clauses can be found in our Quick Guide: Staggered Dispute Resolution Clauses.
ICC arbitration can be used as a forum for the final decision of a dispute after an attempt to resolve it through other means such as mediation. Parties wishing to include in their contracts a progressive dispute resolution clause combining ICC arbitration and ICC mediation should refer to the ICC Model Clauses for mediation rules. When drafting the dispute settlement clause, it is first necessary to decide which forum to choose for the settlement of disputes arising from the agreement. There are several options and parties can choose a forum or a combination of different forums. The common starting point is to decide whether court proceedings or arbitration are more appropriate. This requires an understanding of the pros and cons of different forums, as the transaction is better suited to one or the other in any case. If ICC arbitration is chosen as the preferred method of dispute resolution, this should be decided when negotiating separate contracts, contracts or arbitration agreements. However, if both parties agree, this can also be addressed after a dispute has arisen. The Working Group considered that the phrase “arising out of or in connection with the contract” was broader than “under” the contract and, even if ancillary agreements were separate obligations, so that they arose out of or in connection with the contract, so that the arbitrator had jurisdiction in any event. Brown was therefore entitled to summary judgment.
The defendant argued that article 5 took precedence, but Ramsey J. held that the contract should be interpreted as a whole and that particular attention should be paid to tailor-made changes to the standard form agreed between the parties. The arbitrator was therefore responsible for examining disputes arising out of, arising out of or in connection with the main contract. Secondly, ancillary agreements can be divided into two categories. First, a settlement agreement is a completely separate contract, although it can resolve disputes arising from the main contract. However, the second category of ancillary agreements are those that merely modify the original contract. An ancillary agreement does not have to refer explicitly to the terms of the main contract. If the ancillary agreement results in the modification of the terms of the original contract, this is sufficient. A parallel agreement that merely modifies a contract would be covered by the dispute resolution provisions of the original contract. If the ancillary agreement was in fact a separate settlement agreement, an arbitrator may still have jurisdiction if the dispute settlement clause has been broadly defined in the main contract. In other words, if the dispute resolution clause covers all disputes arising out of or “outside or in connection with” the original contract. “In this case, I believe that ancillary agreements fall into this category of agreements.
It was necessary to take into account the underlying contract, in particular to see the lump sum compensation that had been waived. Since, in my view, those ancillary agreements were amendments to the Treaty, I therefore consider that the disputes arising from those ancillary agreements are duly classified as contractual disputes. To this end, the following wording is proposed: As with all contractual clauses, the introduction of a “standard” arbitration clause in all contracts may not be useful because there is no “standard” contract or dispute. Rather, the parties should consider whether there are issues that the clause should address in the particular circumstances. Arbitration is a procedure in which a dispute (by agreement between the parties) is submitted to a tribunal (usually composed of one or three arbitrators chosen by the parties) which makes a binding decision on the dispute. In choosing arbitration, the parties opt for a private form of dispute settlement procedure rather than submitting to the jurisdiction of a national court. .