|
Model Clause
"Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in Hamburg (Germany) in accordance with the CEAC Hamburg Arbitration Rules."
Option A:
"(a) The number of arbitrators shall be ___ ((i) one or (ii) three or (iii) three
unless the amount in dispute is less than € __________ [e.g. 100.000
€] in which case the matter shall be decided by a sole arbitrator);"
If no such clause is inserted in the contract, Art. 5 CEAC Hamburg Arbitration Rules (= Art. 5 UNCITRAL Arbitration Rules) applies which provides for three arbitrators unless the parties agree within 15 days after receipt of the notice of arbitration by Respondent that the number of arbitrators shall be one.
Option B:
"(b) The arbitration proceedings shall/may take place (also) in
___________ (town or country);"
The parties may wish to agree on an arbitration venue outside Hamburg whether in Germany or elsewhere. This will be the (additional) place where the hearings will take place while the place of arbitration remains Hamburg which is the seat of the arbitration.
Option C:
"(c) The language(s) to be used in the arbitral proceedings shall be
__________;"
In international matters, it makes often sense to agree early also on the language of the arbitration. Sometimes two languages are accepted which, however, reduces the choice of available competent arbitrators and counsels.
Option D:
"(d) Documents also may be submitted in _________________
(language)."
Sometimes it makes sense to agree on one language for the arbitration but to permit the submission of documents also in another language. Such clause shifts the (economical) burden of translation to the party which receives the documents. In such case it is wise to look for Arbitrators who understand the respective language.
Option E:
"(e) The arbitration shall be confidential. The parties agree that also the
mere existence of an arbitration proceeding shall be kept confidential
except to the extent disclosure is required by law, regulation or an
order of a competent court."
Depending on the circumstances of the case it may make sense to provide that even the mere existence of an arbitration proceeding shall be kept confidential.
"(f) The arbitration tribunal shall apply the CEAC Hamburg Arbitration
Rules as in force at the date of the commencement of the arbitration
unless one of the parties requests the tribunal, within 4 weeks from the
date of the constitution of the arbitration tribunal, to operate according
to the CEAC Hamburg Arbitration Rules as in force at the conclusion
of this contract."
Usually a party may wish to only agree on rules known to it at the moment of the conclusion of the contract. Yet, in the case of procedural, UNCITRAL-based rules the parties may prefer to insert a dynamic clause referring to the CEAC Hamburg Arbitration Rules in force at the time of the commencement of the arbitration. As the UNCITRAL Arbitration Rules, which are the basis of the CEAC Hamburg Arbitration Rules, are presently in the midst of an international review, the CEAC Hamburg Arbitration Rules are likely to be adapted to the UNCITRAL standard as soon as an international agreement has been reached in UNCITRAL . Through a dynamic clause as proposed in lit (f), the parties have the freedom to refer to such future developments. However, as nobody likes to grant "blanco" permission to an Arbitration Institution to change the rules, the clause provides for a four week period after commencement of the arbitration during which each of the parties, by a mere written declaration, can stop the application of the new rules and demand the application of the rules as in force at the moment of the conclusion of the contract. To sum up: Through the insertion of the option lit (f) the parties can only improve and not diminish their rights.
|
