Arbitration Clause Design and Review

A commercial arbitration workflow for drafting, reviewing and stress-testing dispute resolution clauses. Authored by Hafez Virjee, independent arbitrator (Virjee Arbitration), President of Delos Dispute Resolution, and co-General Editor of the Delos Guide to Arbitration Places.

GitHub: https://github.com/HVirjee/arbitration-clause-skill

Overview

Arbitration Clause Design and Review helps users create or assess arbitration clauses in commercial contracts.
It is designed for practical use by in-house counsel, lawyers, business teams and others who need to understand whether an arbitration clause is clear, workable and commercially aligned with the transaction.
The workflow can be used to:

• draft a new arbitration clause;
• review an existing arbitration or dispute resolution clause;
• identify drafting pathologies;
• assess seat, institution and rules choices;
• flag missing or problematic elements;
• suggest revised wording;
• generate internal or counterparty-facing explanations.

The default output is concise and action-oriented. Fuller reasoning is available where needed.

Author

Hafez Virjee, independent arbitrator, Virjee Arbitration; President, Delos Dispute Resolution; co-General Editor, Delos Guide to Arbitration Places.

Methodological basis

This workflow draws on practical arbitration experience, arbitral-procedure design, and public Delos/GAP resources concerning arbitral seats, enforcement, legal specificities and cross-border dispute planning.
It reflects a specialist arbitration-practitioner methodology for commercial arbitration clause design and review.
For seat assessment, the workflow may refer to the Delos GAP traffic-light table and, where relevant, the GAP methodology.
The workflow is not a substitute for legal advice or for the Delos GAP itself.

Who this is for

This workflow is intended for:

• in-house counsel reviewing or negotiating commercial contracts;
• lawyers drafting or reviewing arbitration clauses;
• junior lawyers or trainees learning to identify arbitration-clause issues;
• business users who need a practical first-pass view before escalating to counsel.

What the workflow does

The workflow has two main paths.

1. Design path

Use this when drafting a new arbitration clause.
The workflow considers the commercial context and helps generate a clause that addresses, where relevant:

• seat of arbitration;
• institution and rules;
• language;
• number of arbitrators;
• confidentiality;
• governing law companion wording;
• tiered dispute resolution;
• urgency and expedited procedures;
• likely dispute value;
• cost and time considerations;
• relationship preservation;
• enforcement considerations.

2. Review path

Use this when assessing an existing clause.
The workflow can flag issues such as:

• unclear agreement to arbitrate;
• seat versus venue ambiguity;
• missing or mismatched institutional rules;
• missing governing law;
• unclear scope of disputes;
• problematic language provisions;
• vague tiered dispute resolution steps;
• excessive procedural complexity;
• confidentiality gaps;
• multi-contract or multi-party issues;
• enforcement or workability concerns.
  Where useful, the workflow can suggest clean revised wording.

Design principles

The workflow follows five principles:

1. Practical first - provide usable drafting or review output before detailed analysis.
2. Progressive disclosure - ask only necessary questions and offer deeper reasoning only where useful.
3. Commercial context matters - arbitration clauses should reflect the transaction, the parties and the likely dispute profile.
4. Neutrality and proportionality - institution and rules selection should follow the user's priorities, not a default preference.
5. Careful use of sources - public model clauses, GAP materials, institutional rules, fee schedules and duration statistics should be used transparently and cautiously.

Use of Delos and GAP materials

This workflow may use public Delos and GAP materials, including:

• the Delos GAP traffic-light table for seat assessment;
• the GAP methodology page where methodology is relevant;
• Delos model clause wording where appropriate;
• the Delos cost calculator as a fallback and verification source for Delos cost estimates.

For institutional/administrative and tribunal fee estimates for ICC, HKIAC, SIAC, DELOS and the Swiss Arbitration Centre (SAC), the workflow uses the Arbitration Costs Calculator as the preferred consolidated source. The calculator has a human-facing page (https://virjee-arbitration.com/arbitration-costs-calculator/) for user links and manual calculation, and a machine-readable specification page (https://virjee-arbitration.com/arbitration-costs-calculator-machine-readable/) for tool/runtime use. This calculator estimates institutional/administrative and tribunal fees. It does not estimate total arbitration costs and does not cover arbitrator remuneration.

The use of Delos model wording for confidentiality or governing law does not mean that Delos arbitration has been selected. These may be used as neutral companion clauses where express wording is helpful.
Institutional recommendations should be criteria-based. Delos should not be recommended automatically and should not always appear in a shortlist. Where Delos is recommended, the recommendation should be tied to specific user priorities such as time discipline, cost predictability, proportionality, access to justice, relationship preservation or procedural clarity.

Scope

This workflow is for commercial arbitration clauses in contracts.
It may assist with contracts involving SOEs, public bodies or state-linked entities where the relevant party appears to be acting in a commercial capacity. However, where issues of immunity, authority, procurement law, public law, sanctions, enforcement, treaty protection or sovereign capacity may be relevant, specialist legal advice should be obtained before finalising the clause.

Out of scope or specialist-advice areas

This workflow should not be relied on as a complete solution for:

• investment arbitration or treaty-based dispute resolution;
• consumer arbitration;
• employment arbitration where mandatory law may restrict arbitration;
• sports, disciplinary or regulatory arbitration;
• sanctions-heavy or export-control-sensitive matters;
• complex multi-contract or project-finance structures requiring bespoke consolidation or joinder analysis;
• state or sovereign-related arrangements where immunity, capacity, procurement, public law or enforcement issues are material.
  In these cases, the workflow may still help identify issues and possible clause components, but specialist advice should be obtained.

Outputs

Depending on the user's request, the workflow may produce:

• a clean draft arbitration clause;
• a concise clause review;
• a severity-rated list of issues;
• proposed fixes;
• a revised clause;
• a confidence and missing-information note;
• a short rationale;
• a fuller recommendation report;
• internal approval arguments;
• counterparty-facing negotiation arguments;
• indicative time or cost comparisons where reliable data is available.

Important limitations

This workflow is a drafting and issue-spotting tool. It is not legal advice.
Arbitration clauses can have significant consequences under:

• the law of the seat;
• the governing law of the contract;
• the law governing the arbitration agreement;
• institutional rules;
• enforcement jurisdictions;
• mandatory law;
• public-law or sovereign-related regimes.
  Users should obtain legal advice before finalising any clause, particularly for high-value, complex, cross-border, regulated, state-linked or enforcement-sensitive transactions.

Maintenance

This skill should be reviewed:

• every six months for source availability;
• annually for substantive accuracy;
• after major institutional rule changes;
• after fee-schedule changes;
• after GAP updates;
• after release or update of approved cost-comparison tools.

Repository contents

The public package should include:

• SKILL.md
• sources.md
• README.md
• examples.md
• qa-scenarios.md
• changelog.md