Clause for thought - issues to consider when drafting dispute resolution clauses

26 September 2012

This briefing considers the Court of Appeal decision in Sulamerica CIA Nacional de Seguros SA and others v Enesa Engenharia SA and others [2012] EWCA Civ 638.

The case highlights some important issues that need to be considered when drafting dispute resolution clauses. In particular, it serves as a reminder that an arbitration clause located within a commercial contract is separable, and may be governed by a different law, from the rest of the agreement. The case also contains some helpful guidance on the difference between an enforceable agreement to mediate and an unenforceable agreement to agree.