Speaker details

IBA Arb40 Symposium

13 Apr 2023

Cuatrecasas, Lisbon, Portugal

Speaker information

Mariana França Gouveia

Biography

Multi-step clauses are contractual provisions whereby the parties agree to a series of predefined steps, usually including some type of alternative dispute resolution mechanisms, and have arbitration as the forum for final determination of the dispute. Initially conceived for international construction contractions, their use has spread considerably. Nonetheless, parties are usually unaware of the constrains and potential pitfalls of such clauses. Issues of validity and enforcement are constantly put before national courts and arbitral tribunal as parties make use of poorly drafted multi-step clauses with broadly construed requirements, and no set of substantive and procedural rules to be followed. Furthermore, some provisions might impose limits on the access of justice or, ultimately, even denial of justice. Compliance with lengthy steps and overly complicated pre-arbitration requirements might impact a party’s ability to resort the dispute to arbitration in a timely manner. Also, the effects of noncompliance have result in inconsistent case-law from arbitral tribunal. While some consider the prearbitration requirements to be conditions precedents and find the arbitral tribunal to lack jurisdiction when parties failed to comply with the tiered procedures, others find the pre-arbitral requirements mere express of intentions and disregard the obligation to comply or stay the arbitral proceedings while the parties go through the contractual steps. Parties wishing to make use of a multi-step clause should carefully discuss these potential problems in advance and draft well-defined clauses, with a substantive and procedural set of rules to be followed in the event of a dispute.

Session

Keynote Speech

Thursday 13 April (0910 - 0930)

Keynote Speaker