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1、 Mayer, Brown, Rowe and Maw LLP,The Midnight Clause: 10 Traps to Avoid in Drafting Arbitration AgreementsA Webinar,June 19, 2007 Presented by William H. Knull, III and Philippa M. Casey Mayer, Brown, Rowe Remove unnecessary references to court jurisdiction; Ensure there are no mutually incompatible
2、clauses or clauses which lead to uncertainty in the performance of the Agreement; Avoid complexity where possible.,Trap 7: Inconsistent or ambiguous Governing Law Clauses,Floating law clauses Sonatrach v. Ferrell the parties to two agreements which were inter-related had provided that Japanese or En
3、glish law would govern the resolution of the dispute depending on the identity of the parties involved Held: such a provision could not be enforced: parties had to be able to know under which law they were performing the contract at the relevant time Contrast floating jurisdiction clauses perfectly
4、acceptable under English law,Trap 7: Inconsistent or Ambiguous Governing Law Clauses (cont.),In federal systems (e.g., U.S., Canada, Switzerland), both federal and state/provincial/cantonal law may apply at a particular seat Distinction can make an important difference Scope of law may be different
5、Content of law may be different Choice will be honored, so choice should be informed and unambiguously expressed,Trap 8: Indeterminate Time Periods,Problem: Contract provides that, “in the spirit of cooperation,” parties must attempt to negotiate a resolution in good faith before resorting to arbitr
6、ation If no agreement can be reached through negotiation, parties must submit to good faith mediation Only if agreement is still not reached may a party initiate arbitration Question: when can arbitration begin?,Trap 8: Indeterminate Time Periods (cont.),Solution: provide for crisp beginning and end
7、ing dates for each stage Notice in writing of claim X days after notice to negotiate If no agreement after X days from delivery of notice, mediate during subsequent Y days If no agreement within Y days, either party may initiate arbitration,Trap 9: Over-specification,Problem: Anticipating technical
8、disputes, parties designate specific engineers specializing in the products technology Actual dispute relates to questions involving contract formation and interpretation, turning on legal implications of conflicting testimony of percipient witnesses By the time the dispute arises, designated engine
9、ers have moved, retired or passed away,Trap 9: Over-specification (cont.),Except for essential terms (scope, seat, appointing authority, language, governing law), leave flexibility to structure proceedings to fit the need when the claim arises In addition to arbitrators qualifications, best to wait
10、on, e.g., procedures (discovery, witness statements and testimony, etc.) until nature of dispute is known,Trap 10: Assuming Confidentiality,Problem: Since confidentiality is one of the main advantages attributed to arbitration, contract makes no separate provision, relying on reputation and traditio
11、n But: most arbitration rules and national arbitration statutes provide for only limited confidentiality, leaving room for disclosure Solution: If confidentiality is important, provide for it specifically in the agreement And recognize that it may be ephemeral if either party files for or against en
12、forcement in court (though note that the courts in England will protect confidentiality by anonymising judgments/holding private hearings),Conclusions,In international deals, arbitration offers Neutral forum, freedom from other sides “home court” Enforcement across borders under N.Y. and other inter
13、national conventions Advantages can be lost through Drafting that creates pathological ambiguity Use of terms whose implications for subsequent proceedings are not fully understood,Conclusions (cont.),To secure the benefits and avoid the traps: Always get expert advice at the drafting stage Use test
14、ed language Know the local law of the counter-party as to how it affects capacity to contract and to arbitrate Avoid inconsistent terms on forum, jurisdiction, governing law, etc. Ensure accurate designation of administering institution, rules, Mayer, Brown, Rowe and Maw LLP,The Midnight Clause: 10
15、Traps to Avoid in Drafting Arbitration AgreementsA Webinar,This presentation is provided for general informational purposes only and may not reflect the complete legal analysis on the subject. Any information contained herein should not be construed as legal advice and is not intended to be a substitute for legal counsel on this subject. You should not act or refrain from acting on the basis of this presentation without seeking appropriate legal advice based on your particular facts and circumstances. Your participation in this presentation does not create an attorney-client relationship.,