Notes on the drafting of arbitration agreements inshipping and transport related contracts
Fredrik Andersson
16 June 2014
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Arbitration agreements appointing the arbitrator of theclaimant as sole arbitrator in case the respondent is passive
“If the other party does not appoint its own arbitrator and givenotice that it has done so within the fourteen (14) daysspecified, the party referring a dispute to arbitration may,without the requirement of any further prior notice to the otherparty, appoint its arbitrator as sole arbitrator and shall advisethe other party accordingly. The award of a sole arbitratorshall be binding on both parties as if he had been appointed byagreement” (BIMCO standard dispute resolution clause).
vs. sole arbitrator appointed by an institute (cf. equal treatmentprinciple acc. to Ducto)
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Arbitration agreement including a procedure for appointingthe third arbitrator at a later stage in the proceedings
“If the parties are unable or unwilling to agree theappointment of a sole arbitrator in accordance with (i) theneach party shall appoint one arbitrator, in any event not laterthan 14 days after receipt of a further request in writing byeither party to do so. The two arbitrators so appointed shallappoint a third arbitrator before any substantive hearing orforthwith if they cannot agree on a matter relating to thearbitration” (Shell time 4, clause 46).
vs. standard procedure under established institutional rulesand domestic arbitration laws where the chairman is to beappointed within a given time limit
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Arbitration agreements linking the procedural rule to theamount in dispute
“In cases where neither the claim nor any counterclaimexceeds the sum of USD 100,000 (or such other sum as theparties may agree) the arbitration shall be conducted inaccordance with the LMAA Small Claims Procedure current atthe time when the arbitration proceedings are commenced”(BIMCO standard dispute resolution clause).
vs. standard combination clause where the institute is given thepower to decide procedure taking a number of parameters intoaccount
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Arbitration agreements including qualification requirements
..”shall have at least 5 years experience of marine insurancelaw…” (P&I and Hull)
vs. clean model clause
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Questions
Why do we see these type of special solutions?
Are they good solutions?
Why not keep it simple?
