Arbitration clauses are often drafted in the closing hours of negotiation, when fatigue and commercial pressure have already eroded careful judgment. Yet the boilerplate inserted at that Momento determines how — and where — every future dispute will be resolved.

A poorly chosen seat, an ambiguous reference to institutional rules, or a one-sided expedited procedure can quietly add years and significant cost to a dispute that may never even arise. The expense of getting it right is small. The expense of getting it wrong compounds with every passing month.

DRAFTING UNDER PRESSURE

Negotiating teams treat the dispute resolution clause as the final hurdle, not the first opportunity. By the time it reaches the table, energy is spent and dedicated counsel is rarely consulted. What gets signed reflects exhaustion more than strategy.

We encourage clients to bring drafting forward — to the first heads of terms, before commercial expectations have crystallised. At that Momento, choices about seat, language, and emergency relief feel administrative rather than adversarial. They invite consensus instead of resistance.

INSTITUTION OR AD HOC

Institutional arbitration offers predictability and infrastructure; ad hoc proceedings offer flexibility and lower nominal cost. Neither is universally right. The correct answer depends on counterparty profile, asset distribution, and the realistic enforcement landscape.

A clause that names ICC in a transaction where every meaningful asset sits in a non-New York Convention state is decorative, not protective. A clause that omits institutional support in a deal between sophisticated parties may be all the parties needed. Each decision deserves its own analysis.

SEAT VERSUS VENUE

Clients routinely conflate the legal seat with the physical venue of hearings. They are distinct. The seat governs the supervisory court, the curial law, and the enforceability pathway. The venue is logistics.

Getting this distinction wrong in drafting can mean that a tribunal sitting in one city applies the procedural law of another, supervised by a court thousands of miles from where the parties actually disputed. Some clients welcome this complexity; many do not realise it is what they signed.

THE COST OF SILENCE

Clauses that fall silent on language, number of arbitrators, or applicable rules invite procedural skirmishes before the merits are ever heard. Each skirmish is itself an opportunity for delay — and delay is leverage in the hands of a party that has time on its side.

Drafting clearly is not about anticipating every contingency. It is about removing the easy targets. A clean clause turns the dispute into a contest over substance. A muddled clause turns it into a contest over the contest itself.

A QUIETER FINAL HOUR

We work with clients to make the dispute clause the calmest part of the negotiation, not the most rushed. The Momento for serious thought about arbitration is not when the dispute arises. It is when the deal is being shaped — long before either side imagines disagreement could ever follow.