Q&As

Can a multi-tier dispute resolution (DR) clause provide for mediation between the parties in one location followed by in the absence of settlement of the dispute and arbitration in another location? Can a DR clause provide for arbitration and court litigation?

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Published on LexisPSL on 29/01/2018

The following Arbitration Q&A provides comprehensive and up to date legal information covering:

  • Can a multi-tier dispute resolution (DR) clause provide for mediation between the parties in one location followed by in the absence of settlement of the dispute and arbitration in another location? Can a DR clause provide for arbitration and court litigation?
  • Multi-tier dispute resolution clauses
  • Arbitration and litigation in a dispute resolution clause

Can a multi-tier dispute resolution (DR) clause provide for mediation between the parties in one location followed by in the absence of settlement of the dispute and arbitration in another location? Can a DR clause provide for arbitration and court litigation?

Multi-tier dispute resolution clauses

Contractual parties are free to agree, subject to relevant law governing validity/enforceability, that relevant disputes under their contract shall be resolved by mediation followed by, in the event that mediation is not successful, binding arbitration. Indeed, many model alternative dispute resolution (ADR) clauses provide for such an approach—see for example, Mediation followed by arbitration: Chartered Institute of Arbitrators: Atkin's Court Forms [214].

The fact that parties agree for mediation to take place in one location and for arbitration to take place in another is, once again, subject to relevant applicable law, a matter of party autonomy, although such approach will have logistical challenges for the parties and they should consider issues such as, for example, what will be the law of the seat of arbitration. Note: it is important to recognise the distinction between a venue for arbitration proceedings and the legal seat of those proceedings. It is possible for hearings to take place in jurisdictions other than the legal seat of arbitral proceedings.

You may also wish to consider the enforceability of your clause in any relevant jurisdictions. For example, in Cable

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