In recent years there has been a significant increase in the popularity of arbitration as a means of resolving disputes. The relative ease with which arbitral awards are enforced, its neutrality, finality, flexibility and confidentiality have all helped to elevate arbitration, enhancing its reputation as an effective method of dispute resolution and offering parties an attractive alternative to litigation.

Central to the utilisation of arbitration are in-house counsel, who have an important role to play in the process. The role of in-house counsel has undergone significant change in recent years; no longer are they limited to simply managing the legal and regulatory risk associated with the business. They must also be a leader with the ability to provide a macro view of the company, understand the issues it faces and provide viable and tangible solutions to its problems.

Setting the agenda

If the use of arbitration is to be as effective as possible, in-house counsel must ensure that a dispute resolution clause is not a mere afterthought, copy and pasted from a precedent. “The nature of the contract, the identity of the counterparty, choice and number of arbitrators, potential enforcement challenges and confidentiality are just some of the key factors that should be taken into account in the drafting of the dispute resolution clause – all of which require careful consideration on the part of in-house counsel,” explains Nick Marsh, a partner at Quinn Emanuel Urquhart & Sullivan UK LLP.

Drafting a dispute resolution clause is an important task for in-house counsel to effectively manage any disputes that might arise. Various arbitral institutions have produced guidance for parties and their in-house counsel.

Jul-Sep 2019 issue

Richard Summerfield