Drafting arbitration clauses that survive enforcement

When parties negotiate a contract, the dispute resolution clause is often the last thing agreed and the least scrutinised. Yet it is the clause that determines, years later, whether a party can actually recover value from a win.

The clause is an enforcement decision

Choosing arbitration is not simply choosing privacy or speed. It is choosing an enforcement path. A well-drafted clause names the seat, the rules, the number of arbitrators, the appointing authority and the language. A clause that omits these invites a preliminary fight about the process itself — before the merits are ever reached.

Common failure points

• Ambiguous seat — leaving the seat unclear creates uncertainty about the supervisory court and the procedural law.
• Inconsistent forums — a clause that refers some disputes to court and others to arbitration, without a clear boundary, produces jurisdictional challenges.
• Unworkable appointment mechanics — if the named appointing authority does not exist or will not act, the process stalls.

Think about the award, then work backwards

If enforcement may be needed abroad, the New York Convention framework matters, and the clause should be drafted with recognition in mind. If enforcement will be domestic, align the clause with the Arbitration Act and, where relevant, NCIA rules.

The practical point

Before litigation or arbitration is ever commenced, it is worth assessing the likely cost, timeline and enforcement path of each available forum — and drafting the clause so the chosen path is actually open when it is needed.

General commentary only. The right clause depends on the parties, the deal and where assets are located.