Arbitration In-Depth: Strategies for Drafting and Enforcing Clauses

Lisa M. Richman | McDermott Will & Emery

Lisa M. Richman focuses her practice on international dispute resolution matters, with a particular emphasis on international commercial arbitration and public international law.

She has experience representing clients in a broad range of matters, including in the areas of international commercial and investment arbitrations, securities enforcement, securities litigation, general commercial litigation disputes and insurance coverage.

Lisa’s clients have included investors, governments, corporations, corporate officers and directors, and individuals in disputes seated in common law and civil law jurisdictions worldwide. Her work has included disputes conducted under ICC, ICSID, ICSID AF, AAA/ICDR, SIAC, HKIAC, JAMS, DIS, LCIA, CPR, Swiss Rules and UNCITRAL Rules as well as pure ad-hoc arbitrations. She has handled disputes in a wide variety of industries with a particular focus on disputes relating to energy, oil and gas, intellectual property, pharmaceutical, infrastructure, licensing, securities, telecommunications, joint ventures and construction.

Lisa also has represented corporations, corporate officers and directors, and individuals in international and domestic arbitrations and litigations in the US and around the world. Complementing her dispute resolution expertise, Lisa has managed internal investigations worldwide and has helped a variety of companies to resolve government investigations, including World Bank Sanctions proceedings. Lisa is listed on the arbitrator list of the Vienna International Arbitral Centre (VIAC), in the LCIA’s database of neutrals and is a member of the SIAC Users Counsel, the ITA Americas Committee and the DIS Rules Revision Committee. She is a native German speaker, and also speaks Spanish and French.

She has received recognition for her expertise as a dispute resolution specialist by, among others, Global Arbitration Review, Who’s Who Legal, Benchmark Litigation, the Commercial Arbitration Expert Guide, the National Law Journal, the American Lawyer, Juve, Super Lawyers and Law360.

While in law school, Lisa was a notes and comments editor for The Tax Lawyer. Following law school, Lisa was a law clerk for the Honorable A. Franklin Burgess, Jr. of the District of Columbia Superior Court

I. Understanding arbitration clauses | 1:00pm – 1:30pm

• Arbitration: Definition, importance, difference to litigation
• Difference between different types of alternative dispute resolution mechanisms (in the US and abroad)
• Ad hoc vs institutional arbitration
• Arbitration pros and cons
• Essential elements of effective arbitration clauses
• Importance of the Federal Arbitration Act (FAA)
• Recent key arbitration cases

II. Common pitfalls in drafting arbitration clauses | 1:30pm – 2:00pm

• Identifying common drafting mistakes
  • Ambiguity in language
  • Inadequate scope definition
  • Failure to address critical issues
• Strategies to avoid enforcement challenges
  • Clarity and precision in language
  • Ensuring mutuality and fairness
  • Addressing potential conflicts of law
• Other important issues
  • Arbitrator selection
  • Confidentiality vs privacy
  • Binding vs non-binding

Break | 2:00pm – 2:10pm

III. Customizing and best practices for drafting | 2:10pm – 2:40pm

• Tailoring arbitration provisions to specific business needs
  • Industry-Specific considerations
  • Addressing unique dispute scenarios
• Best practices for clear and enforceable drafting
  • Techniques for unambiguous language
  • Importance of consistency in terms
  • Review and revision strategies
• Comparison of different arbitral institutions
• Practical examples

IV. Steps of the arbitration process | 2:40pm – 3:10pm

• Case initiation
• Arbitrator selection and appointment
• Preliminary hearing and information exchange
• Discovery
• Written submissions
• Hearing
• Award
• Enforcement