ISDA publishes its updated Arbitration Guide

ISDA publishes its updated Arbitration Guide

Massimiliano Danusso, managing partner at Bonelli Erede and PRIME Finance expert, discusses the recent publication of the 2018 ISDA Arbitration Guide.

Why has ISDA updated its arbitration guide?

ISDA has published in December 2018 a second edition of its arbitration guide (the 2018 ISDA Arbitration Guide). The guide, as first published five years ago (the 2013 ISDA Arbitration Guide), has been updated in order to ensure that it remains up-to-date with users’ preferences, changes in arbitration laws and rules, and changes in market practice.

In particular, it responds to the growing trend to use arbitration for cross-border transactions, and is intended to assist market operators by providing a range of model clauses which may be used with the ISDA 1992 Master Agreement under English/New York Law, the ISDA 2002 Master Agreement or the new 2002 ISDA Master Agreement under Irish Law.

In this respect, the 2018 Arbitration Guide does refer to recent trends in international arbitration such as the rise in multi-party and multi-contract disputes, the advent of summary/early determination procedures, as well as the implications of recent decisions (such as the Russian Supreme Court ruling according to which a clause providing for arbitration under the ICC Rules needs to expressly state that the ICC International Court of Arbitration would administer the arbitration in order to be certain and enforceable: see Dredging and Maritime Management SA v InjTransStroy AO dispute).

How does the new guide differ from the previous version?

While the basic structure of the 2018 ISDA Arbitration Guide remains unchanged reflecting ISDA members’ broad satisfaction with the first edition, a number of new model clauses have been added in response to users’ feedback, and amendments have been made to the guidance notes to reflect changes in arbitral rules and market practice over the past five years.

The 2018 ISDA Arbitration Guide provides updated guidance on the use of an arbitration clause with an ISDA Master Agreement and includes an expanded range of model arbitration clauses for a greater number of arbitration institutions and seats around the world.

The 2018 ISDA Arbitration Guide now contains four additional model clauses for use with the 2002 and 1992 Agreements which, in no particular order, provide for arbitration:

  • under the SCC Rules with a Stockholm seat and choice of English or New York govern

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About the author:

Meet Emma:

1.Banking and finance lawyer with experience in derivatives, debt capital markets, securitisation and structured finance in London and Paris

2.Likes ballet, playing the harp and holidays

3.Thinks the law is always changing!

Emma trained and qualified at Allen & Overy LLP and worked in their derivatives and structured finance teams in London and Paris.  She then joined the foreign exchange prime brokerage legal team at Deutsche Bank before spending 4 ½ years with Crédit Agricole CIB advising the fixed income and derivatives desk.