Document type: Toolkit Practice area: Arbitration — International Arbitration Jurisdiction: United States Last reviewed: 5 September 2026

Tool 1 — Dispute map

Complete before drafting any clause. One hour, and the highest-return hour in the transaction.

Transaction: ___ Prepared by: ___ Date: ___

Agreements

# Agreement Parties Drafted by Signed

Failure scenarios and who is in the room

Scenario Likely claimant Likely respondents Agreements engaged Common factual question
Performance failure Owner Contractor, subcontractor, designer Prime, sub, design Cause of failure
Payment dispute Contractor Owner Prime Entitlement
Post-closing indemnity Buyer Seller, subsidiaries, former officers SPA, escrow, employment Knowledge and disclosure

Coverage check

Likely respondent Party to an arbitration agreement? Which? Compatible with the others?

Gaps identified: ___ Not arbitrable at all: ___ Recommended changes: ___

Tool 2 — Compatibility matrix

Run at signing, and again on any amendment.

Agreement Institution Rules ed. Seat Arbs Appointment Language Law of arb. agt. Consolidation Joinder Delegation Class waiver

Reading the matrix:

  • Rows that match can be consolidated. Rows that differ cannot.
  • Any blank in the "Law of arb. agt." column is a future dispute.
  • Any "no" in consolidation or joinder, in an interdependent suite, should be deliberate.
  • Any deliberate difference: record the reason in a note beneath the table.

Tool 3 — Clause suite

Article [X] — Dispute Resolution

X.1 Arbitration. Any dispute, controversy, or claim arising out of or relating to this Agreement, including its existence, validity, interpretation, performance, breach, or termination, and any non-contractual obligation arising out of or in connection with it, shall be finally resolved by arbitration under the [Rules] (the "Rules"), which are deemed incorporated by reference.

X.2 Tribunal. Three arbitrators. Where the arbitration involves more than two parties and the parties do not agree on the constitution of the tribunal within twenty-one (21) days of the Request, the [Institution] shall appoint all three arbitrators and designate one to preside, notwithstanding any nomination previously made by any party.

X.3 Seat. The legal seat is [city, country], irrespective of where hearings are held.

X.4 Language. [English].

X.5 Law of this arbitration agreement. This Article [X] is governed by the law of [jurisdiction], notwithstanding the law governing this Agreement.

X.6 Consolidation. The parties consent to the consolidation, under the Rules, of any arbitration commenced under this Agreement with any arbitration commenced under any other Transaction Document where the disputes arise out of the same or a related series of transactions.

X.7 Joinder. The parties consent to the joinder to any arbitration commenced under this Agreement of any party to any Transaction Document, on the application of any party to the arbitration or of the party to be joined, under the Rules.

X.8 Transaction Documents. As listed in Schedule [Y], as amended, together with any further agreement designated as a Transaction Document in writing by the parties to it and to this Agreement.

X.9 Delegation. The tribunal has exclusive authority to determine any dispute concerning the interpretation, applicability, enforceability, scope, or formation of this Article [X], including any contention that all or part of it is void or voidable.

X.10 No class or representative proceedings. No arbitration under this Agreement shall be consolidated with, or conducted as, a class, collective, or representative proceeding, and the tribunal has no authority to award relief to any person that is not a party to the arbitration. If this Section X.10 is held unenforceable in whole or part, the remainder of this Article [X] shall continue in full force.

X.11 Interim relief. Nothing in this Article prevents a party from applying to any court of competent jurisdiction for interim or conservatory relief in aid of arbitration, and such an application is not incompatible with, or a waiver of, this arbitration agreement.

X.12 Confidentiality. The arbitration, all submissions and evidence, and the award are confidential, save as required by law, to enforce or challenge an award, or for disclosure to a party's professional advisers, auditors, and insurers under equivalent obligations.

X.13 Costs. The tribunal may apportion the costs of the arbitration among the parties as it considers appropriate, having regard to the relative success of each party on each claim, the conduct of each party, and the extent to which each party's participation contributed to the costs incurred.

Tool 4 — Flow-down clause

For prime contracts, master agreements, and any arrangement with material downstream contracts.

[Contractor] shall include, in each subcontract, purchase order, or other agreement with a value exceeding $[amount] relating to the Project, a dispute resolution provision identical in substance to Article [X] of this Agreement, and shall procure from each such counterparty its written agreement: (a) to the consolidation of any arbitration under that agreement with any arbitration under this Agreement or any other Transaction Document; (b) to its joinder, on the application of [Owner] or [Contractor], to any arbitration under this Agreement or any other Transaction Document; and (c) that the [Institution] may appoint the entire tribunal in any such arbitration involving more than two parties.

[Contractor] shall provide [Owner], on request, with a copy of the relevant provisions of any such agreement and of the written consent obtained. [Contractor] shall indemnify [Owner] against any loss, cost, or expense arising from [Contractor]'s failure to comply with this Section, including the additional costs of separate proceedings.

Note. The indemnity is what makes this obligation real. Without it, a contractor under time pressure will trade the clause away in a subcontract negotiation and nobody will find out until the dispute.

Tool 5 — Retrofit agreement

Adds the machinery to contracts already signed. Counterparties agree more often than expected, because multiple proceedings are expensive for them too.

DISPUTE RESOLUTION PROTOCOL AGREEMENT

The parties are parties to the agreements listed in Schedule 1 (the "Covered Agreements"), each of which contains an agreement to arbitrate. The parties wish to provide for the efficient resolution of related disputes.

1. Consolidation. Each party consents to the consolidation, under the [Rules], of any arbitration commenced under any Covered Agreement with any arbitration commenced under any other Covered Agreement, where the disputes arise out of the same or a related series of transactions.

2. Joinder. Each party consents to its joinder to, and to the joinder of any other party to a Covered Agreement to, any arbitration commenced under any Covered Agreement.

3. Harmonization. For any consolidated or multiparty arbitration under this Protocol: the institution is []; the seat is []; the tribunal comprises three arbitrators; the language is []; and this arbitration agreement is governed by the law of []. These provisions prevail over any inconsistent provision of a Covered Agreement to the extent of the inconsistency, but only in a consolidated or multiparty arbitration.

4. Appointment. Where the parties on one side do not agree on a nomination within twenty-one (21) days, the [Institution] shall appoint all three arbitrators.

5. No other change. Nothing in this Protocol otherwise varies any Covered Agreement, and each Covered Agreement's arbitration provision continues to apply to a bilateral arbitration under it.

6. Additional agreements. The parties may add an agreement to Schedule 1 by written agreement.

Tool 6 — Consolidation request

REQUEST FOR CONSOLIDATION To: [Institution] · Ref: Arbitration Nos. [] and []

1. The arbitrations. Case [A]: [claimant] v [respondent], commenced [date], under [agreement], claiming [summary]. Case [B]: [same].

2. Basis. Consolidation is sought under Article [___] of the Rules on the ground that: □ all parties agree □ the claims are made under the same arbitration agreement □ the claims are made under different arbitration agreements, the arbitrations are between the same parties, the disputes arise in connection with the same legal relationship or a related series of transactions, and the arbitration agreements are compatible.

3. Compatibility.

Agreement A Agreement B
Institution
Rules
Seat
Arbitrators
Appointment
Language
Law of the arb. agreement
The clauses are compatible in each respect.

4. Related transactions. [Explain the commercial and factual relationship: the agreements were entered on [date] as part of [transaction]; they are cross-referenced at [___]; the disputes turn on the same events, namely ___.]

5. Common questions. [List the factual and legal questions common to both, and the risk of inconsistent findings.]

6. Express consent. [Where the clauses contain consolidation consent, quote it.]

7. Stage of the proceedings. [Tribunals not yet constituted / constituted on [dates]. If constituted, address the consequences.]

8. Efficiency. [Duplicated evidence, witnesses, costs; estimated saving.]

9. Relief. Consolidation of Case [B] into Case [A], with directions for the constitution of the tribunal.

Tool 7 — Joinder application

APPLICATION FOR JOINDER To: [Institution / the Tribunal] · Ref: Arbitration No. [___]

1. The party to be joined. [Name, address, role in the transaction.]

2. Basis. Joinder is sought under Article [___] on the ground that: □ the Additional Party is bound by the arbitration agreement □ the Additional Party has consented in writing [attach] □ all parties consent.

3. The arbitration agreement binding the Additional Party. [Identify the agreement and quote the clause. If relying on a consolidation/joinder consent in a suite agreement, quote that too.]

4. The claims against or by the Additional Party. [Summary, and the relationship to the existing claims.]

5. Why joinder is appropriate. Common questions of fact and law; risk of inconsistent findings; the Additional Party's participation is necessary to determine [issue]; efficiency.

6. Timing. [Whether the tribunal is constituted; if so, address the appointment consequences and the Additional Party's position on the tribunal as constituted.]

7. Effect on the timetable. [Proposed adjustments.]

8. Relief. Joinder of the Additional Party, with directions for [tribunal constitution / an amended timetable].

Tool 8 — Opposition outline

1. No consent. The Additional Party is not a party to the arbitration agreement relied on and has not consented. [Quote the clause; identify the signatories.]

2. Incompatible clauses. The agreements provide for [different institution / seat / tribunal size / appointment / language / governing law], set out in the table below. They cannot be operated together.

3. Not the same or a related series of transactions. [Distinguish the agreements: different dates, different subject matter, no cross-reference, negotiated separately.]

4. Prejudice to tribunal constitution. The tribunal was constituted on [date] following [our] nomination. Consolidation would require its reconstitution and deprive [us] of the nomination right for which [we] bargained. Any award of a reconstituted tribunal would be exposed to challenge on the ground that its composition was not in accordance with the parties' agreement.

5. Prejudice to the timetable. [Specific delay, with the current schedule.]

6. Confidentiality. [The applicant is a competitor; consolidation would expose commercially sensitive material to a party with no contractual right to it.]

7. Efficiency does not favour consolidation. [The common issues are narrow; the claims turn on different facts; the saving is illusory.]

8. Reservation. [Include Tool 9.]

Tool 9 — Jurisdictional reservation

Include in every submission from the first. An objection not preserved is generally waived.

RESERVATION. [Party] participates in this arbitration [and in the [consolidated / multiparty] proceeding] without prejudice to, and expressly reserving, all objections to the jurisdiction of the Tribunal, to the consolidation of these proceedings, to the joinder of [party], and to the composition of the Tribunal. Nothing in this submission, in [Party]'s participation in any procedural step, in its nomination of an arbitrator, in its payment of any deposit, or in its participation in any hearing, constitutes or shall be construed as a submission to the jurisdiction of the Tribunal, an acceptance of the consolidation or joinder, an acceptance of the Tribunal's composition, or a waiver of any right to challenge any award on those grounds in any forum.

Preservation log — maintain it:

Stage Date Objection made Document Ref
Application
Answer
Terms of reference
PO1
Each submission
Post-hearing

Tool 10 — Non-signatory analysis worksheet

Non-signatory: ___ Agreement: ___ Law governing the arbitration agreement: ___

Theory Facts supporting Facts against Governing-law standard Assessment
Incorporation by reference Is the incorporating language broad enough to reach the arbitration clause specifically?
Assumption Conduct manifesting assent
Agency Signatory acting as agent for a disclosed/undisclosed principal
Alter ego / veil piercing Domination + injustice; formalities disregarded
Third-party beneficiary Intended beneficiary suing on the contract
Direct benefits estoppel Knowing exploitation and receipt of direct benefits
Intertwined claims estoppel Applied inconsistently — check the jurisdiction

Direction of the argument: □ compelling the non-signatory in □ non-signatory compelling a signatory (Courts are considerably more receptive to the second.)

Conclusion: □ strong □ arguable □ weak If weak — the alternative: parallel court proceeding, and the coordination plan is: ___

Tool 11 — Procedural order no. 1 (multiparty)

1. Party groupings. For submission deadlines, hearing time, and document requests, the parties are grouped as: Group A []; Group B []; Group C [___]. Grouping is administrative and does not affect any party's separate rights or positions.

2. Submission sequence.

Step Party Date
Statements of claim (all claiming parties, simultaneous)
Statements of defence and counterclaim (simultaneous)
Replies and defences to counterclaim (simultaneous)
Rejoinders (simultaneous)

3. Document production. Requests in Redfern schedule form, consolidated. No party may serve more than [15] requests on any other party. Objections and the tribunal's decisions in the same schedule. Deadlines: ___.

4. Hearing time. Total [] days. Allocation proportionate to claims advanced and defended: Group A []%, Group B []%, Group C []%. Time is measured by chess clock, including examination and submissions. Tribunal questions are not charged.

5. Cross-examination. Order: (a) the party calling; (b) parties with adverse interests, in the order the tribunal directs; (c) re-examination. No party may cross-examine on a topic already covered by another party except with leave.

6. Confidentiality. [Confidentiality ring where competitors are involved: designated material available only to external counsel and experts who have signed the undertaking at Annex 1.]

7. Costs. The tribunal will apportion costs having regard to relative success on each claim, each party's conduct, and the extent to which each party's participation contributed to costs. Parties should conduct the proceeding accordingly.

8. Reservations. The reservations recorded at [___] are noted and are without prejudice to any party's rights.

Tool 12 — Hearing time allocation model

Party Claims advanced (value) Claims defended (value) Witnesses called Witnesses to cross Allocation
Claimant __%
Respondent 1 __%
Respondent 2 __%
Joined party __%
Reserve (tribunal questions, procedural) 10%

Principles: allocation proportionate to exposure and participation, not equal shares · chess clock, agreed in advance · unused time is not transferable · a party that runs out cannot compel additional time · the reserve is not allocated to any party.

Tool 13 — Settlement exit deed

SETTLEMENT AND WITHDRAWAL DEED

1. Settlement. [Settling Party] and [Counterparty] settle all claims between them in the Arbitration on the terms at Schedule 1.

2. Withdrawal. [Settling Party] withdraws from the Arbitration with effect from [date], and the parties request the Tribunal to record the withdrawal [and to issue a consent award in the terms at Schedule 2].

3. Costs. [Settling Party]'s share of costs incurred to the date of withdrawal is $[___], payable as follows: ___. [Settling Party] has no liability for costs incurred after that date.

4. Continuing cooperation. [Settling Party] shall, for the duration of the Arbitration: (a) produce documents it would have been required to produce had it remained a party; (b) make available for witness statements and for examination at the hearing the individuals listed at Schedule 3; and (c) not object to the use in the Arbitration of any document it has produced. [Counterparty] shall reimburse [Settling Party]'s reasonable costs of compliance.

5. Contribution. [Settling Party] is released from any claim for contribution or indemnity by any remaining party in respect of the settled claims, to the extent permitted by the governing law. [Counterparty] indemnifies [Settling Party] against any such claim.

6. Confidentiality. The terms are confidential; the fact and date of withdrawal may be disclosed to the Tribunal and the remaining parties.

7. No admission.

Tool 14 — Clause audit template

For reviewing an inherited portfolio.

Counterparty group: ___ Reviewed by: ___ Date: ___

Inventory — every agreement, amendment, side letter, and terminated agreement that may govern accrued claims.

Extraction — the compatibility matrix (Tool 2) for all of them.

Grouping — agreements sharing a compatible clause, listed together. Agreements in different groups cannot be heard together.

Gaps

  • Agreements with no dispute resolution provision
  • Amendments that introduced a different clause
  • Likely defendants not party to any arbitration agreement
  • Carve-outs creating a which-clause-governs risk
  • Missing law of the arbitration agreement

Report to the client — one page: what you have · what can be heard together · what cannot · the three changes worth making at the next amendment or renewal · whether a retrofit protocol (Tool 5) is worth proposing.

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