Model arbitration clause
The arbitration agreement must be in writing and may take the form of a clause in the contract or of a separate agreement (Legislative Decree 1071, Article 13). Incorporating the following text is sufficient for the dispute to be resolved before ANDEARB.
8.1 General clause — contracts between private parties
“All disputes, differences or claims arising out of or in connection with this contract, including those relating to its existence, validity, effectiveness, interpretation, performance, rescission or termination, shall be resolved by arbitration at law administered by ANDEARB — Arbitration Center, in accordance with its Arbitration Rules in force at the time the arbitration is commenced, to which the parties unconditionally submit. The arbitral tribunal shall consist of [a sole arbitrator / three arbitrators]. The place of arbitration shall be the city of [CITY], Peru, and the language of the arbitration shall be Spanish. The award shall be final and not subject to appeal.”
8.2 Multi-tier clause — prior direct negotiation
“The parties shall endeavor to resolve in good faith, through direct negotiation, any dispute arising out of this contract within [fifteen (15)] business days following the written notice in which either of them raises it. If that period expires without full agreement, the unresolved dispute shall be submitted to arbitration at law administered by ANDEARB — Arbitration Center, in accordance with its Arbitration Rules in force at the time the arbitration is commenced. [...complete with the elements of clause 8.1...]”
8.3 Clause for contracts subject to Law 32069
“Disputes arising between the parties concerning the performance, interpretation, rescission, non-existence, ineffectiveness or invalidity of this contract shall be resolved by institutional arbitration administered by ANDEARB — Arbitration Center, in accordance with its Arbitration Rules and the applicable public procurement regulations. The arbitration shall be at law and the award shall be final and not subject to appeal.”
8.4 Subsequent submission — where the contract contains no clause
“[Name of party A] and [name of party B] agree to submit to arbitration at law, administered by ANDEARB — Arbitration Center in accordance with its Arbitration Rules, the dispute that has arisen between them regarding [describe the legal relationship and the subject matter in dispute]. The arbitral tribunal shall consist of [a sole arbitrator / three arbitrators]. The place of arbitration shall be [CITY] and the language of the arbitration shall be Spanish.”
Key elements to decide when drafting
| Element | Why it matters |
|---|---|
| Number of arbitrators | A sole arbitrator makes the proceedings less costly and faster; three arbitrators are justified in disputes involving a higher amount in dispute or greater technical complexity. |
| Place of arbitration | Determines the legal seat and, with it, the court competent to hear an application for annulment. |
| Language | Avoids disputes and translation costs when there is documentation in another language. |
| Arbitration at law | Unless expressly agreed otherwise, it is advisable to specify it in order to rule out arbitration ex aequo et bono. |
| Time limit for the award | A time limit different from that set out in the Rules may be agreed, with the consequences the Rules provide. |
| Confidentiality | The duty of confidentiality exists by law; agreeing on its scope with respect to third parties avoids gray areas. |
Errors that invalidate or distort the clause
- Designating a non-existent institution or one with an incorrect name. The law treats that scenario —as well as an incompatible or contradictory designation of two institutions, or the institution's refusal to accept the appointment— as ad hoc arbitration, unless otherwise agreed (Legislative Decree 1071, Article 7).
- Combining arbitration and conciliation as if they were the same mechanism, or submitting the dispute to an arbitral tribunal and to the Judiciary at the same time.
- Omitting the number of arbitrators and the place of arbitration in high-value contracts, where these points often become the first matter in dispute.
- Copying another center's clause without changing the name of the administering institution.
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