In a recent post we talked about the necessity to have an agreement to arbitrate, so the parties can have the ability to present a request and a response to arbitration, which can be made before an arbitral institution or on an ad hoc basis.

So after making clear that the parties have agreed to submit all or part of their current or future disputes through arbitration, then another element that must be looked closely is the seat of the arbitration.

By saying the seat of the arbitration, it is the actual place where the arbitration judicially speaking will be located, this does not mean that you need to travel to such a place to present your request for arbitration, or answer, or your claim and response, but it could happen that you need to travel there for the audiences to be held.

It also does not mean that the arbitrators or the arbitral tribunal must be located physically there meanwhile the arbitration takes place. It is a judicial fiction, in the sense that the arbitrators and the arbitral tribunal even if seated in a given country, lets say, Santiago de Chile, it does not mean that necessarily, the arbitrators must be there the whole time, nor having their law firms there.

What does then means to have a judicial seat of the arbitration, well, it means that for judicial purposes, the seat of the arbitration will indicate the jurisdiction of the national courts which will be acting in support of the arbitration for one side, and for the other, once an arbitral award is rendered, then the national courts where the arbitration is taking place, will have the jurisdiction to decide on matters regarding the validity or not of the arbitration agreement as well as to the annulment or not of the final award.

Which also will impact the decision as to the lawyers that could be acting within the arbitration, as well as the lawyers who will be acting when there is the need of the involvement of the national courts of the seat of the arbitration.

If both parties are from Latin-America and choose as a seat of the arbitration to be Geneva, Switzerland, it will be advisable to have at least a correspondent lawyer in Geneva just to be on the safe side, even if the case does not need the intervention of such lawyers in Geneva.

Choosing the seat then becomes important as well with the attitudes the local courts may have towards arbitration, they can be pro-arbitration, or against arbitration, or in total ignorance of arbitration, as of today, it is more common to have national courts acquainted with arbitration, but a great assessment must be made as to the seat.

There you go, be clear in two aspects when drafting an arbitration clause or agreement, establish unequivocally that the parties wish to have their disputes resolve under arbitration, and second that the seat of the arbitration be in a given jurisdiction.

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