ISDA Arbitration Guide 2013: model clauses provide a step towards certainty

The 2013 ISDA Arbitration Guide was published last week (9 September 2013) following a two-year consultation with ISDA members. It provides model clauses for various forms of arbitration for use in derivative transactions. This is welcome news for the banking and investment community, which has not always found the standard ISDA submission to court-based adjudication of disputes to be ideally suited to complex cross-border structured product disputes.

The consultation process commenced with a memorandum to members dated 19 January 2011 entitled ‘The use of arbitration under an ISDA Master Agreement’ and a further memorandum to members dated 10 November 2011 was followed by meetings and consultations with stakeholders around the world.

The purpose of the consultation was to gauge member interest in using arbitration in connection with derivative transactions documented under the ISDA Master Agreement. The results of the consultation proved positive and members clearly showed an appetite for international arbitration being used for derivatives disputes and indicated that model clauses would be helpful…

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