Parties can, of course, customize their arbitration agreements to provide for an arbitration procedure that is tailored to the parties and the types of dispute that might arise between them. For example, parties can limit certain procedural stages of an arbitration, most notably the document production phase. Providing for a sole arbitrator in appropriate cases could reduce time in various ways, including the time for formation of the tribunal and potentially for deliberation on and issue of the award.
The Swiss Chambers’ Arbitration Institution (SCAI) recently introduced an interactive tool to help users customize their arbitration clauses. Users can select up to four additions to a model clause (from abridged time limits to documents-only arbitration) and the online system will generate a customized clause for inclusion in the contract. Even though the options are limited, this tool is a useful starting point to encourage parties and counsel to think about what might be needed for a particular dispute in the future.
The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) is another institution that offers a range of standard clauses with various options. The SCC’s clauses are not presented in as technologically advanced format as the SCAI’s tool, but they remain useful for adapting the dispute resolution provision to the needs of the parties to a particular contract.
In practice, the option to tailor the arbitration clause is underutilised. Dispute resolution clauses are all too frequently included at the eleventh hour based on a standard form template and without adequate (if any) input from a dispute resolution specialist. This is regrettable as prioritizing and investing time in the negotiation of a tailored arbitration clause could save parties significant cost, time and aggravation in the event that a dispute arises. That said, care must be exercised when drafting bespoke arbitration clauses, as unclear drafting may lead to additional disputes over what the parties intended or even render the clause unenforceable.