Arbitration Clause: When a Friendly Deal Stops Being Friendly - Grain Disputes
·

Arbitration Clause: When a Friendly Deal Stops Being Friendly

Commercial terms are often checked carefully: goods, price, quality, delivery basis, timing and form. The dispute clause may then be added as an afterthought: amicable settlement, failing which arbitration in England.

That may look like protection. In a real dispute, it can become a separate dispute about where to go, which law applies, which rules govern the process and who appoints the tribunal.

When the clause starts to matter

While the contract is being performed, the clause attracts little attention. Once delivery or payment fails, it becomes the route into the dispute.

Why it costs money

A phrase such as arbitration in London is not necessarily fatal. English law may provide fallback mechanisms, and the court may in some cases assist with appointment of the tribunal. But that is not a free solution.

A party that wanted to recover a debt may first have to spend time and money establishing how the tribunal should be formed at all.

What should be clear

In grain trade, it is often safer to incorporate the relevant GAFTA form correctly than to invent bespoke wording. If GAFTA 48 is clearly and consistently incorporated, the form will usually bring English law, the GAFTA arbitration clause and the GAFTA rules with it.

PRACTICAL TAKEAWAY

An arbitration clause is not a formal tail at the end of a friendly contract. It is the route map for the moment when the friendship ends. The clearer it is, the less likely the parties are to spend money first arguing about how to start the real dispute.

Related notes

Sincerely yours,
Oleg Kryukovskiy
← All articles