James Menz on Drafting Arbitration Agreements, 11 February 2020
On 11 February 2020, we had the opportunity to participate in a workshop that I personally regard as one of the most engaging and insightful guest lectures we have had so far.
The lecturer, James Menz, is currently working as Senior Litigation Expert in Bombardier Transportation's Global Litigation Group. Prior to joining Bombardier Transportation, he was Deputy Secretary General & Head of Case Management at the German Arbitration Institute (DIS), after working for law firms in New York and Zurich. In this workshop on the challenges and key points to consider when drafting arbitration agreements, we were therefore able to benefit from his practical perspective on the topic and his vast experience in international dispute resolution.
After a brief discussion on the advantages of arbitration compared to litigation in international disputes, he summarized the most important elements to be taken into account when drafting a dispute resolution clause. He explained to us how the possibilities in drafting such clauses are being approached in the corporate environment, without ending up with an invalid clause. Mr Menz showed us some examples of arbitration clauses that he had encountered in the past, and he highlighted the importance of having a profound knowledge of dispute resolution when drafting such clauses.
Following this, we discussed the reasons why certain arbitral institutions are most frequently chosen by corporate players and also examined possible improvements. Finally, we engaged in a practical exercise that involved drafting arbitration clauses for different scenarios, such as designing a dispute resolution mechanism with a mandatory multi-tier clause, or in the setting of M&A negotiations in which the different actors in a corporate group do not have the same views.
I concluded from this intriguing lecture that it will be the task of lawyers like us who specialize in international dispute resolution to contribute to the search for the optimal arbitration clause, by drafting clauses that favor all parties, that exclude or add specific rules depending on the specific dispute, that choose the most suitable applicable law, and above all that choose places of arbitration and arbitral institutions which contain rules that lead to the settlement of a dispute in a fair and efficient manner and guarantee the selection of capable and neutral arbitrators.
Esthefania Vargas, IDR LL.M. Candidate