A Deeper Dive into the Importance of Dispute-Resolution Clauses

An interview with Marieke Schaink, Partner at Avizor advocates & arbitrators

Marieke Schaink has worked primarily in international arbitration since beginning her legal career in 2011, save for a three-and-a-half-year stint at the Netherlands Authority for the Financial Markets (AFM). As a Partner at Avizor advocates & arbitrators, she specialises in commercial arbitration, with a particular focus on complex contractual disputes. In this interview, she explains why dispute-resolution clauses deserve far more attention than they often receive.

Why is it so important for companies to think carefully about dispute-resolution clauses at the contracting stage?

A dispute-resolution clause determines the framework of how a dispute will be resolved: who will decide the dispute, where it will be decided, under which rules, and how the outcome can ultimately be enforced. In that sense, it is much more than a technical clause: it’s actually a risk management tool. If it is not correctly formulated, there is a real risk that a dispute cannot be resolved efficiently, or that an award is rendered but cannot be enforced. Even though it may seem like a small issue, a well-written dispute-resolution clause makes sure that both parties know exactly what to expect and can resolve disputes through a clear, structured and efficient process.

Why is the contracting stage the right moment to address this?

At the contracting stage, parties’ interests are aligned in at least one aspect: everyone wants the transaction to succeed. There is usually a willingness to give and take in order to reach an agreement. Once a dispute arises, that willingness often disappears: the parties find themselves on opposing sides and, at a minimum, perceive each proposal from the other as disadvantaging them, which in turn makes them less engaged and less open-minded. So agreeing on procedural matters becomes much more difficult. Addressing dispute resolution early avoids that problem, at least to some extent.

In cross-border contracts, is international enforceability the key advantage of arbitration?

International enforceability is one of arbitration’s most important qualities, particularly due to the New York Convention. A large number of countries are party to it, which means arbitration awards can be recognised and enforced almost worldwide. That level of enforceability is difficult to achieve with court judgments.

What elements should companies include to ensure an arbitration clause is effective and enforceable?

There are several ‘must-haves’ in an arbitration clause; you have to include these otherwise things just don’t work. The most fundamental is an unequivocal submission to arbitration; it must be absolutely clear that the parties are opting out of the state court system. Another crucial element is the seat of arbitration, which determines the nationality of the award and the applicable arbitration law. Choosing a reputable, arbitration-friendly seat with an independent legal system is vital. That’s because non-reputable seats or non-arbitration-friendly jurisdictions certainly do exist. The third important element is whether to work with an arbitration institution. While parties can carry out arbitration without an institute – known as ad hoc arbitration – having an institute involved means that the arbitration process is taken care of. The institute provides rules, procedures, administrative support and safeguards against procedural deadlock. Beyond that, parties can include all kinds of add-ons such as language, number and qualifications of arbitrators.

What are the most common mistakes you see in practice?

I often see jurisdictional disputes caused by clauses that are unclear or imprecise. This frequently arises with split jurisdiction, where multiple dispute resolution mechanisms apply within the same contract. That choice can work, but the drafting must be extremely precise. If the language is unclear, a lot of time, effort and money may be lost on disputes about how the disputes should be resolved. That is not to say that more detail is the solution. In fact, another pitfall I see is overengineering. Being overly prescriptive, for example by stipulating narrow arbitrator qualifications, may sound sensible, but combined criteria (such as a specific language requirement plus expertise in the governing law) can severely shrink the arbitrator pool, slow appointments, and complicate the process.

Why is Netherlands-seated ICC Arbitration particularly suitable for businesses?

The ICC is an internationally renowned arbitral institution and ICC arbitration benefits from truly global input. The rules are shaped by contributions from local committees around the world, including the Netherlands, which makes them robust and well balanced. Combined with the Netherlands’ strong arbitration community, with experienced arbitrators, an independent, arbitration-literate judiciary, and an arbitration-friendly legal framework, this makes the Netherlands an attractive seat, even for disputes where neither party is Dutch.

How can in-house counsel and commercial teams work better together on dispute-resolution strategies?

It is important that in-house counsel understands commercial priorities, while commercial teams are aware of which legal points should not be conceded. That mutual understanding makes a real difference. I can imagine that in the heat of a transaction, achieving that mutual understanding can be difficult. A practical way to approach that can be to develop an internal playbook: a clear framework outlining preferred dispute-resolution options for different situations.

Finally, what advice would you give to young practitioners starting out in arbitration?

Get involved early. I waited quite long before actively participating in the arbitration community because it didn’t seem like something I’d truly enjoy or fit naturally into. But there are so many approachable events for young practitioners, and they offer real opportunities to learn, connect, and find mentors. My advice is to dive in: you’ll learn a great deal, build meaningful relationships, and, above all, it’s genuinely a lot of fun!