Harper James advises start-ups, scale-ups and established businesses on commercial disputes and arbitration under the laws of England and Wales. A well-drafted arbitration agreement sets the process before a dispute arises, reducing arguments about jurisdiction, delay and cost.
State precisely which disputes are covered. A broad clause referring to disputes “arising out of or in connection with” the contract generally captures contractual, tortious and related claims, while a narrower clause limits the tribunal’s jurisdiction. Identify the governing law of the contract separately from the law of the arbitration agreement, and choose the seat of arbitration carefully. An England and Wales seat brings the arbitration within the supervisory jurisdiction of the courts of England and Wales, even if hearings take place elsewhere.
The clause should also select institutional or ad hoc arbitration, name the rules, specify the number and appointment process for arbitrators, and set the language of the proceedings. Institutional rules provide an established timetable and administrative framework. Ad hoc arbitration offers more flexibility but requires the contract to address appointments, fees, procedural decisions and deadlock. Review practical arbitration drafting considerations before adopting wording from an unrelated agreement.
Draft for the dispute the business expects to manage. Include provisions on consolidation and joinder where contracts involve a group company, subcontractor or guarantor. Address confidentiality, document production, witness evidence, remote hearings and allocation of costs, while recognising that the chosen institutional rules may already regulate these matters. If urgent protection is important, confirm access to emergency arbitrator procedures and court applications for interim relief. A clause that requires negotiation or mediation first should set a clear notice, timetable and end point, so it does not become an obstacle to issuing proceedings.
The Arbitration Act 2025 introduced reforms affecting arbitrator disclosure, summary disposal of claims or defences, emergency arbitrator support and challenges to awards. The arbitration clause, the wider dispute resolution process and the selected institutional rules need to work together with these provisions. Review standard terms after material legal or operational changes, particularly where the business adds overseas counterparties, uses multiple connected contracts or changes its procurement model. Harper James can review a master services agreement, SaaS agreement or supply contract and align the arbitration mechanism with the company’s commercial risk, likely forum and budget.