In the first article in this series titled “Drafting an Arbitration Agreement in 2022,” I highlighted matters to consider including in dispute resolution agreements to reflect recent events and current social priorities. In the second article, I examined the issue from the perspective of transactional attorneys. In this third article of the series, I consider the views of four litigators, the professionals who are often consulted by their corporate partners to advise on drafting and who ultimately have to defend or critique the provisions: Lea Haber Kuck, a partner in Skadden’s international litigation and arbitration group, where she concentrates her practice on the resolution of complex commercial disputes arising out of international business transactions; Cecil Key, head of the DGKeyIP Group of DiMuroGinsberg P.C., who focuses on the protection, enforcement and licensing of intellectual property rights; Taline Sahakian, a partner in Constantine Cannon’s antitrust litigation & counseling and commercial litigation groups, where she has represented parties in international arbitrations and in the context of mediations of commercial disputes; and Dan Weiner, co-chair of Hughes Hubbard & Reed’s litigation department and a regular arbitration counsel in high-stakes commercial disputes.

As the reader may recall, in my first article, I suggested exploring the following five items for inclusion in dispute resolution agreements: an alternative arbitration center the parties may turn to in case their initial choice is no longer an option due to unforeseen events; whether hearings should (or may) be held remotely or in-person; cybersecurity measures to follow during proceedings; a description of equity, diversity and inclusion considerations to take into account when selecting arbitrators and arbitration venues; and a mediation clause before parties can move to an adjudicative process.

Arbitration Center