The following Arbitration guidance note provides comprehensive and up to date legal information covering:
Before commencing arbitration proceedings, parties should consider whether there is any contractual requirement to enter into mediation or any other form of ADR procedure. It is common for dispute resolution clauses to be tiered—see: Drafting ADR clauses—overview and Practice Note: Types of dispute resolution clauses—ADR, multi-tier, hybrid and carve-out clauses. If there is such a requirement then the courts have shown that, subject to certain conditions, they will try to uphold the clause and that the parties must enter into the agreed process (see: Channel Tunnel v Balfour Beatty, Mackley v Gosport, Cable & Wireless v IBM, Cott v FE Barber, Holloway v Chancery Mead, Emirates Trading v Prime Mineral and Ohpen v Invesco).
The courts take a common sense approach to the interpretation of requirements for pre-arbitration formalities. In EEEL v Vijay, the parties’ dispute resolution clause stipulated, ‘each Party shall notify another Party of such dispute, and both Parties shall try to settle such dispute amicably before any arbitration starts. However, unless otherwise agreed between the Parties, the arbitration shall not start before expiration of a two-month period starting on the day of the notice of a dispute, even though attempts may not be made to settle the dispute amicably.’ One party sent a notice of dispute to the other but it was
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