Good Deals Gone Bad—Drafting Dispute Resolution Provisions to Avoid International Disputes

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If an international deal goes bad, and the dispute resolution provision does not provide for a manageable and enforceable process, a bad deal may turn into a bad dispute. With few exceptions, giving courts the exclusive jurisdiction to resolve disputes against a foreign party, particularly in emerging markets, may lead to difficulties in enforcement. And even if arbitration is chosen over litigation, the dangers of a poorly worded international arbitration clause should not be underestimated. A clever adversary can exploit an imprecise clause to challenge the jurisdiction of the arbitrators in the courts or, at the very least, to substantially delay the proceeding and significantly increase the legal fees necessary to resolve the dispute.

Mayer Brown partner B. Ted Howes, leader of the firm’s US International Arbitration practice, and associates Hannah Banks (New York) and Joseph Otoo (London) discuss the dos and don’ts of drafting effective dispute resolution provisions in international commercial contracts.

Questions to be addressed include:

Should you choose litigation or arbitration?

What provisions are essential for an enforceable and workable international arbitration provision?

What additional provisions will decrease the risk of expensive legal proceedings?

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