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While international arbitration seeks to aid in the legal predictability and stability of international contracts by providing for the neutral, impartial, centralized and enforceable resolution of disputes arising out of international contracts, parties should always seek to negotiate the forum where they have the best prospect of achieving and enforcing success. Parties should consider the best combination of governing law, arbitral institution and treaties applicable to their transaction.

Parties should also consider whether protection in the form of a bilateral or multilateral trade agreement is available. One innovation of the BIT for example, has been to provide foreign investors with the ability to directly seek recourse against the host state by international investment arbitration. With careful negotiation, it is possible to structure a deal, and the dispute resolution mechanisms, to provide for the same level of protection for international deals as can be found in a BIT for investment deals.

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Take away:

  • Careful choice of jurisdiction and seat of arbitration is essential when structuring an international arbitration agreement.

 

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