Commencing arbitration - initial considerations

• Is the arbitration agreement valid and does it bind the potential parties?
• Does the dispute in question fall under the scope of the arbitration agreement? Consider the probable types of disputes that could arise in the context of the commercial relationship
• Would you consider sending a letter before starting arbitration?
• Is arbitration best option? What other types of dispute resolution methods can be best in the given circumstances?
• Are there any procedural steps the parties must carry out before initiating arbitration (e.g. period of negotiation or mediation )?
• Are there any limitation periods (either specified in the contract or in statute) that may time-bar the claim?
• Is any interim relief required? If your client may need interim relief, provide for appointment of an emergency arbitrator or for interim relief by a court
• Who are keey employees/witnesses?
• What would be the costs budget and expected benefits?
• Are there settlement opportunities?
• Determine whether courts in the relevant jurisdiction will give broad meaning to clauses specifying the types of disputes/claims that are arbitrable
• How Will The Tribunal Be Selected? need of speedy constitution of the tribunal
• It is important to determine whether the courts in the proposed place of arbitration will be advantageous or disadvantageous to your client.
• Where will be held the hearings? Hearings can be held anywhere; however, in selecting the place, consider practical issues such as cost, accessibility, convenience and ability of parties and witnesses to obtain visas.
• Unless otherwise specified, the procedural law that will govern the arbitration will be that of the "place" (or "seat") of arbitration.
• Specify whether two or more arbitration proceedings may be consolidated, and in which circumstances.
• Specify how the tribunal will be selected when claims are consolidated.
• Consider whether the rights of appeal and/or review provided in the applicable arbitration legislation should be expanded, or contracted, if the law of the place of arbitration so permits.
• Consider stipulating specific procedural or evidentiary requirements, or limiting or eliminating some of the procedural or evidentiary processes, restrictions and formalities found in court litigation.
• Set procedures and timing provisions (often aimed at speed) that are realistic, practical, workable and in your client's interest. If deadlines are provided, the tribunal should have discretion to extend them.
• Allow the tribunal adequate discretion to determine procedures and timing that suit the circumstances because detailed procedural rules or tight timetables may not fit the particular dispute that arises.
• Consider enforcement of the award and the inclusion of a provision that judgment may be entered on the award and enforced in any court of competent jurisdiction.
• Consider the jurisdictions in which the parties may want to enforce an award.
• Consider whether the jurisdiction's treaty ratification is subject to any declarations and reservations
• Provide for waiver of sovereign immunity -- both immunity from suit and immunity from enforcement/execution.
• Provide for waiver of non-disclosure privileges.

Source: Article by Barry Leon and Jana Stettner

http://www.mondaq.com/canada/x/61936/Arbitration+Dispute+Resolution/Arbitration+Clause+Checklist