Arbitration – what do IHLs need to know?

Speakers

This panel looked at key things that IHLs should know about arbitration. In particular, they looked at three key topics:

Whether or not you should choose arbitration:

if you value confidentiality, need special expertise from those deciding the case, or may need to enforce an award where there is no court enforcement treaty, then you should think about arbitration
if you have a low value contract, want to preserve rights of appeal, or may need to involve third parties in your claim, then you should think about the courts

What you should look out for when drafting an arbitration clause:

think about using template clauses, which are published by leading arbitral institutions (such as LCIA and ICC)
avoid entering into conflicting dispute resolution clauses in overlapping contracts as part of the same transaction (for example, by mixing courts and arbitration across the contracts)

before: know your stuff (use resources to brush up on arbitration); be prepared – obtain approvals (to initiate a claim, from insurers and the like); invest in your advisers (why choose a particular firm? how do you want to work with them? get to know them)
during: project manage (be the link between external counsel and the business); work out ways of working (what do you want to review? how will you involve the business?); keep track of costs, continually check on strategy, check you are ready for disclosure, anticipate the ramifications of the award (how does it link to business activity? how will you enforce?)
after: loudly share lessons learned (to help the business going forward); update stakeholders and thank advisers