Model contract clauses and agreements
The following are model dispute resolution contract clauses that can be used by external solicitors or in-house counsel.
"Catch All" Dispute Resolution Clause
"The parties shall attempt to resolve any dispute arising out of or relating to this contract through negotiations between senior executives of the parties, who have authority to settle the same.
If the matter is not resolved by negotiation within 30 days of receipt of a written 'invitation to negotiate', the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (ADR) procedure, or in default of agreement, through an ADR procedure as recommended to the parties by the President or the Deputy President, for the time being, of the Chartered Institute of Arbitrators.
If the matter has not been resolved by an ADR procedure within 60 days of the initiation of that procedure, or if any party will not participate in an ADR procedure, the dispute may be referred to arbitration by any party. The seat of the arbitration shall be England and Wales. The arbitration shall be governed by both the Arbitration Act 1996 and Rules as agreed between the parties. Should the parties be unable to agree on an arbitrator or arbitrators, or be unable to agree on the Rules for Arbitration, any party may, upon givng written notice to other parties, apply to the President or the Deputy President, for the time being, of the Chartered Institute of Arbitrators for the appointment of an Arbitrator or Arbitrators and for any decision on rules that may be necessary.
Nothing in this clause shall be construed as prohibiting a party or its affiliate from applying to a court for interim injunctive relief."
Suggested Arbitration Clause
"Any dispute or difference arising out of or in connection with this contract shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within fourteen days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Deputy President of the Chartered Institute of Arbitrators."
Suggested Arbitration & Mediation Clause
Any dispute arising out of or in connection with this contract shall, at first instance, be referred to a mediator for resolution. The parties shall attempt to agree upon the appointment of a mediator, upon receipt, by either of them, of a written notice to concur in such appointment. Should the parties fail to agree within fourteen days, either party, upon giving written notice, may apply to the President or the Deputy President, for the time being, of the Chartered Institute of Arbitrators, for the appointment of a mediator.
Should the mediation fail, in whole or in part, either party may, upon giving written notice, and within twenty eight days thereof, apply to the President or the Deputy President, for the time being, of the Chartered Institute of Arbitrators, for the appointment of a single arbitrator, for final resolution. The arbitrator shall have no connection with the mediator or the mediation proceedings, unless both parties have consented in writing. The arbitration shall be governed by both the Arbitration Act 1996 and the Controlled Cost Rules of the Chartered Institute of Arbitrators (2000 Edition), or any amendments thereof, which Rules are deemed to be incorporated by reference into this clause. The seat of the arbitration shall be England and Wales.
Suggested Construction Adjudication Clause
A party to this contract ("the Referring Party") may at any time give notice ("the Notice") in writing to the other party of its intention to refer a dispute arising under the contract to adjudication.
The parties may agree the identity of the adjudicator.
Where an adjudicator is not agreed within 2 days of the Notice being given the Referring Party shall immediately apply to the Chartered Institute of Arbitrators for the nomination of an adjudicator, which nomination shall be communicated to the parties within 5 days of receipt of the application.
Within 7 days of the Notice the Referring Party shall refer the dispute to the adjudicator.
The adjudicator shall reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred.
The adjudicator may extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred.
The adjudicator shall act impartially.
The adjudicator may take the initiative in ascertaining the facts and the law.
The decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.
The adjudicator is not liable for anything done or omitted in the discharge or purported discharge of his functions as adjudicator unless the act or omission is in bad faith and any employee or agent of the adjudicator is similarly protected from liability.
Model Mediation Agreement
The following is a model mediation agreement that can be used by practising mediators prior to the start of a mediation. Any mediator using CIArb's Mediation Rules can use it.
Practice Guidelines and Protocols
You will also find a range of useful practice guidelines and protocols for use by practising arbitrators, mediators and adjudicators under Practice Guidelines and Protocols.
Last Updated: 09 June 2011