Akin Gump international arbitration partner Hamish Lal has written the article "Don't you dare miss a step: mediation and arbitration," which was published by Building magazine. The article examines the issue of whether a mediation clause in a contract makes it unlawful to proceed directly to arbitration, even after termination.
Lal writes that the English High Court "typically supports the enforcement of an alternative dispute resolution step in a multi-tier dispute resolution procedure." He cites a recent case where the court "distilled and codified the principles applicable where a party seeks to enforce an alternative dispute resolution provision by means of an order staying court proceedings."
Lal then observes that the main issue for in-house counsel in instances like these is that "reference to arbitration in the absence of mediation means that there is a procedural irregularity." As a result, an arbitral tribunal "cannot be appointed or that the arbitral tribunal would not have the requisite power or jurisdiction to decide the dispute or indeed to order a stay to allow mediation to take place."
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