an excerpt from ALTERNATIVE DISPUTE RESOLUTION 2001 EDITION
published by the llinois Institute for Continuing Legal Education

© 2001 by Stephen E. Smith

III. Drafting the International Arbitration Agreement

S. [23.25] Offsets

In an abundance of caution the parties may include the determination of any "offset" which the losing party seeks to interpose for not paying the full amount of the arbitral award within the one arbitration proceeding itself.

T. [23.26] Place of Arbitration

This item allows the parties to designate the seat of the arbitration. This is a very short but important part of the clause. Designating a place of arbitration is the most effective way to insure, as far as possible, that an arbitral award is to utilize the procedure adopted by the New York Convention of 1958 (Convention). The number of signatory nations is still growing. At present there are approximately 126 countries that have ratified the Convention, usually with the two reservations permitted: 1) awards must relate to "commercial relationships" and 2) awards must be rendered in a country which is also a signatory to the Convention.

If these reservations are met, the signers have pledged 1) to defer to the arbitral jurisdiction whenever an action is brought under a contract containing an arbitration clause and 2) to enforce the arbitral award without reviewing the merits of arbitrators’ decision.

U. [23.27] Preliminary Adjudication of Threshold Issues and Provisional Relief

The parties may, by this portion of the clause, provide for either the arbitrators or a court to make preliminary adjudication of issues and award provisional relief.