ANTICIPATING ISSUES

DELOS PROMOTES LEGAL SECURITY AND THE PROPER PERFORMANCE OF CONTRACTS THROUGH THEIR REGISTRATION WITH DELOS

MODEL CLAUSES

To download a PDF copy of the model clauses, click here. Once the DELOS arbitration clause has been inserted into your contract, and your contract has been finalised and signed, remember to register it with DELOS by e-mailing us a copy of it. Registration is free and will give you access to multiple benefits.

MODEL DELOS ARBITRATION CLAUSE

DELOS suggests that the following model arbitration clause be inserted into the contract. It is expressly designed to support the cost-effective and rapid arbitration proceedings of DELOS; it should be inserted into contracts without modification, and parties are invited to choose one among the seats, or legal places, of arbitration, listed in Schedule 1. 

1.  Any dispute arising out of or in connection with this contract shall be exclusively and finally resolved by arbitration in accordance with the DELOS Rules of Arbitration in force on the date of commencement of the arbitration

2.  The seat, or legal place, of arbitration shall be [parties to choose one of the seats of arbitration listed in Schedule 1], but the parties agree to hold hearings and/or meetings (if any) in any suitable location and/or by any suitable means of simultaneous communication. The language of arbitration is to be [parties to choose one of the languages listed in Schedule 2]. The arbitration tribunal shall consist of a sole arbitrator appointed in accordance with the DELOS Rules of Arbitration. 

3.  By submitting their dispute to arbitration under the DELOS Rules of Arbitration, the parties agree to comply with any award without delay and waive their right to any form of recourse insofar as such waiver can validly be made.

Please note that, if parties agree to DELOS arbitration but use a different arbitration clause (or submission agreement – see below) from the model provided, or if parties modify the wording of the model arbitration clause (or submission agreement), or  if parties choose a seat and/or language of arbitration different from any of those proposed in the Schedules, DELOS may exercise its discretion to apply any time and costs scale to the dispute and/or vary the dispute timetable, as necessary. If parties prefer the arbitration tribunal to consist of three arbitrators instead of a sole arbitrator, DELOS draws their attention to Article 2 of Appendix 4 of its Rules of Arbitration.

NEGOTIATION OPTION BEFORE ARBITRATION

If, when negotiating their contract, parties require a period of formal negotiations to be initiated before an arbitration can be commenced, DELOS proposes that they insert the following wording at the beginning of the model arbitration clause. This pre-arbitration time is important for parties carefully to assess their positions and, potentially, settle their dispute. In case of DELOS arbitration, such an assessment will assist parties with engaging in an active process designed to ensure the efficient resolution of their dispute. 

DELOS draws the parties’ attention in this regard to Article 4(1) of its Rules of Arbitration, which provides that, “[f]rom the date of (deemed) receipt by Respondent of the Notice of Arbitration and of the Filing Fee payment receipt, whichever is latest, Respondent will have seven days to submit a “Notice of Defence” or a “Notice of Defence and Counterclaim” […]”.

Two parties to the contract

1. In the event of any dispute arising out of or in relation to this contract, either party shall invite the other party to commence negotiations to resolve the dispute. Any invitation to negotiate shall be issued in writing, in the usual manner in which the parties communicate in writing.

2. If the parties do not reach a settlement within [14 calendar days – parties to define appropriate time period] of one party having invited the other in writing to negotiate, [continue with “any dispute arising out of…” in the model arbitration clause above]

Three or more parties to the contract

1. In the event of any dispute arising out of or in relation to this contract, any party may invite the other parties to commence negotiations to resolve the dispute. Any invitation to negotiate shall be issued in writing, in the usual manner in which the parties communicate in writing.

2. If the parties do not reach a settlement within [14 calendar days – parties to define appropriate time period] of one or more parties having invited the other parties in writing to negotiate, [continue with “any dispute arising out of…” in the model arbitration clause above]

MODEL CONFIDENTIALITY CLAUSE 

Parties may also want to keep their arbitration and its outcome confidential. In this case, DELOS suggests using the following language:

The parties agree to keep confidential the existence and contents of the arbitration and the written and oral pleadings and all documents produced for or arising from the arbitration, save as may be required by legal duty or to protect or pursue a legal right.

MODEL GOVERNING LAW CLAUSE

A contract which does not clearly specify a governing law may complicate the resolution of a dispute arising under the contract. DELOS therefore recommends to insert a governing law clause into the contract, such as the following:

This contract is to be governed by the substantive law of [jurisdiction].  

MODEL AGREEMENT FOR SUBMITTING EXISTING DISPUTES TO DELOS ARBITRATION

If a dispute has already arisen and the parties wish to submit it to DELOS arbitration, the parties would generally enter into a submission agreement to this effect. DELOS suggests that the submission agreement contain the following clause:

1. The parties agree that the following dispute shall be exclusively and finally resolved by arbitration in accordance with the DELOS Rules of Arbitration in force on the date of this agreement: [insert description of the dispute and the parties to the dispute].

 2. The seat, or legal place, of arbitration shall be [parties to choose one of the seats of arbitration listed in Schedule 1], but the parties agree to hold hearings and/or meetings (if any) in any suitable location and/or by any suitable means of simultaneous communication. The language of the arbitration is to be [parties to choose one of the languages listed in Schedule 2]. The arbitration tribunal shall consist of a sole arbitrator appointed in accordance with the DELOS Rules of Arbitration.

 3. By submitting their dispute to arbitration under the DELOS Rules of Arbitration, the parties agree to comply with any award without delay and waive their right to any form of recourse insofar as such waiver can validly be made.

SCHEDULE 1.  DELOS SEATS OR LEGAL PLACES OF ARBITRATION (AS OF 1 JANUARY 2018)

Parties are invited to choose one of the following (ordered alphabetically) as the seat, or legal place, of arbitration designated in their arbitration agreement:

Amsterdam (The Netherlands)
Auckland (New Zealand)
Frankfurt (Germany)
Geneva (Switzerland)
Hong Kong (PRC)
Lisbon (Portugal)
London (UK)
Miami (USA)
New York (USA)
Paris (France)
Seoul (South Korea)
Singapore (Singapore)
Stockholm (Sweden)
Sydney (Australia)
Toronto (Canada)
Vienna (Austria)

SCHEDULE 2.  DELOS LANGUAGE OF ARBITRATION

Parties are invited to choose one of the following languages (ordered alphabetically) as the language of arbitration designated in their arbitration agreement:

English
French
Spanish