August 14, 2012 Articles

Conditions Precedent to Commencing an International Arbitration

By Manjit Gill

Parties to international commercial transactions routinely expend significant time and resources negotiating the details of the relationship. Against this backdrop, the nations in which these transactions take place also have often negotiated a myriad of treaties that impact the procedural landscape for enforcing rights under these commercial transactions. Sometimes, the precise adherence to any procedural requirements set forth in these treaties may seem a waste of time or futile, and as a result, one of the parties to the transaction may instead elect to initiate the agreed-upon arbitral process to resolve the dispute, once and for all. Arbitration has long been recognized as a dispute-resolution mechanism to be encouraged. However, in the quest to resolve disputes by arbitration, can the rules that set forth the procedure to be followed before arbitration can commence be ignored, because one or both parties think that a particular procedural condition precedent to arbitration would be a waste of time? The District of Columbia Circuit recently answered this question with an emphatic no.

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