Arbitration & mediation
Checklist for drafting international arbitration agreements that address governing law seat of arbitration and enforcement mechanisms clearly.
This evergreen guide provides a practical, action-oriented framework for crafting international arbitration clauses that clearly designate governing law, seat of arbitration, and robust enforcement mechanisms across diverse jurisdictions.
July 28, 2025 - 3 min Read
In cross-border commercial arrangements, the arbitration clause functions as a strategic tool that shapes risk allocation, predictability, and dispute resolution speed. A well-constructed clause should define the governing law governing the contract and the substantive issues, while also designating the seat of arbitration as the procedural nucleus. Beyond these basics, it should address how awards are recognized and enforced, including any necessary treaty or domestic law considerations. The drafting process benefits from aligning the clause with the contract’s overall risk profile, the parties’ commercial objectives, and the anticipated enforcement landscape. Clear articulation in this first segment reduces later ambiguities and minimizes costly misunderstandings among counterparties and courts.
To ensure coherence, the clause should clearly separate governing law from the governing procedural seat, avoiding ambiguity about which regime governs contract interpretation versus arbitral procedure. The clause should specify whether the seat is a legal hub with centralized judicial oversight or a more flexible seat with limited court involvement. Consideration of chosen law should cover contract formation, performance, and remedy, while keeping in mind how public policy, mandatory rules, and international treaty obligations may interact with the agreement. A carefully drafted preface helps subsequent arbitration rules and procedures operate without collision or redundancy.
Specify enforceability paths and treaty-based recognition upfront.
Parties often underestimate the importance of aligning governing law with the seat of arbitration. Misalignment can lead to conflicting standards of review, differing interpretations of arbitration clauses, or divergent non arbitration issues such as contract formation or enforceability under local law. A robust clause will declare the governing law as the substantive rule applicable to the contract, and simultaneously designate the seat to govern arbitral procedure and institutional framework. It should anticipate potential effects of public policy constraints and mandatory rules that could influence the arbitral process, ensuring that despite differing national laws, the arbitration remains fair, efficient, and enforceable.
Enforceability considerations demand explicit cooperation with international instruments such as the New York Convention and any regional treaties. The clause should reference the sister mechanisms for recognizing and enforcing awards across different jurisdictions, including timelines, possible anti-suit injunctions, and any required party consent for certain enforcement actions. Additionally, it is prudent to include a gateway provision stating that the arbitral tribunal’s award will be recognized and enforced in accordance with applicable treaties and domestic laws. This forward-looking language helps curb disputes about whether an award is subject to specific treaty guarantees or national procedural hurdles.
Clarify interim relief, costs, and public policy limits.
A thoughtful clause addresses the evolving enforcement landscape by acknowledging conditional or provisional measures and the possibility of challenging an award. It should specify whether the tribunal may order interim relief in relation to asset preservation, injunctive relief, or other protective measures, and which authority has jurisdiction over such relief. Clarity on interim remedies helps shield the contract’s value from depreciation during proceedings and reduces the risk of irreparable harm. The drafting should also contemplate the allocation of costs related to interim orders, including security for costs if appropriate. These provisions reduce the potential for strategic delays by counter-parties seeking to undermine the arbitration.
Another essential element concerns the governing law’s interaction with mandatory rules, public policy, and material public interests. A precise clause will recognize that certain mandatory laws may override selected contractual choices, yet will still provide predictability by outlining how conflicts will be resolved. For example, if a chosen law disfavors a particular remedy or imposes specific disclosure requirements, the clause should state how such conflicts will be reconciled in the arbitration context. This foresight helps preserve the contract’s core protections while acknowledging global legal variability and the need for practical arbitral decision-making.
Define the procedural backbone and dispute scope clearly.
The drafting approach should also address the scope of the arbitration agreement itself, including whether it covers all disputes arising out of or related to the contract, and whether amendments or novations affect the arbitration clause. A precise formulation can prevent disputes about whether certain claims fall within arbitration or must be litigated in court. Consider including a severability clause to preserve the arbitration agreement’s validity if any portion is later held unenforceable. The clause should also contemplate joinder or consolidation provisions and how third-party interests are treated in the arbitration context, thereby offering a comprehensive roadmap for future dispute scenarios.
Finally, it is beneficial to outline the procedural framework that will govern the arbitration, without prejudging substantive outcomes. This may include references to applicable arbitral rules, caveats about language of proceedings, and the location of hearings if the seat is not a fixed venue. To minimize friction, the clause should specify the number of arbitrators, the selection process, and the timetable for appointment. Explicitly addressing these procedural aspects reduces uncertainty and supports efficient, predictable resolution, which is especially valuable in ongoing commercial relationships with complex supply chains or multi-jurisdictional operations.
Address confidentiality, costs, and budgeting for disputes.
A robust international arbitration clause also considers confidentiality and publicity, specifying whether hearings and awards remain confidential and under what conditions information may be disclosed. Many commercial users require strict confidentiality, while others may accept limited disclosure for regulatory, tax, or contractual compliance reasons. The clause should outline any permitted disclosures, including to auditors, insurers, investors, or regulatory bodies, and identify how confidentiality obligations survive the termination of the agreement. This clarity helps manage reputational risk, competitive sensitivity, and the evolving expectations of stakeholders across borders.
In addition, the clause should specify how the arbitration will be funded, including the allocation of arbitrator fees, administrative charges, and security for costs if applicable. Parties frequently disagree over cost-shifting and energy invested in the proceedings. A fair clause will state whether costs follow the event or are borne in equal shares, define what constitutes recoverable expenses, and indicate the procedure for cost allocation if the arbitration is terminated early. Transparent budgeting provisions support predictable financial planning and reduce the likelihood of ancillary disputes that can derail the process.
To ensure practical durability, the drafting should incorporate a mechanism for amendments, allowing the clause to adapt to regulatory changes or shifts in business strategy. This may include a covenant to review the arbitration framework periodically, with a defined process for consent to modifications by all parties. A well-constructed mechanism avoids incremental, ad hoc amendments that could undermine the original balance of risk, and it encourages proactive governance of disputes in light of market evolution. The ability to adjust the framework without renegotiating the entire contract can be particularly valuable for long-term collaborations or multi-phase project commitments.
As a finishing touch, consider providing model language or a drafting checklist to guide future contract teams. This resource can outline essential elements such as the seat, governing law, enforcement pathway, interim relief, and costs, along with suggested wording variants to fit different jurisdictions. Equally important is ensuring that the clause remains compatible with any existing dispute resolution procedures, including optional fast-track procedures or tiered escalation clauses. A clear, adaptable drafting approach fosters confidence among parties, counsel, and tribunals, and supports smoother cross-border negotiations and enforcement in the future.
