On June 2, 2026, Caroline Duclercq, Marie-Laure Bizeau, and Chiraz Abid had the pleasure of speaking at a conference organized by the Centre de Médiation et d’Arbitrage de Paris (CMAP).

The discussions revolved around a deliberately provocative question: Can you lose an arbitration before it even begins?

This topic highlights a fundamental reality: the success of an arbitration proceeding is often determined well before a request for arbitration is filed.

The discussions focused in particular on three strategic pillars:

1. Drafting the arbitration agreement and making key structural choices (seat, applicable law, institution, language)

Effective arbitration begins during contract negotiations. A carefully drafted arbitration clause, tailored to the nature of the project and consistent with the contractual documentation as a whole, is essential to ensuring legal certainty and managing dispute-related risks.

2. Managing contract performance

Preserving evidence, complying with notice requirements, and formulating reservations and claims with precision are essential practices for safeguarding parties’ rights and avoiding the weakening of a future arbitration.

3. Initiating and anticipating the proceedings

Complying with preconditions to arbitration (such as multi-tier dispute resolution clauses) helps avoid creating procedural disputes within the main dispute. It is also crucial to identify in advance the party or parties that should be brought into the arbitration so that any award will be effective and enforceable. Arbitration is not merely about presenting the merits of a case—it requires meticulous procedural preparation and a long-term strategic vision.

Key takeaway: Many difficulties encountered in arbitration stem not from the proceedings themselves, but from strategic decisions made—or omitted—months or even years before the dispute arises.

A sincere thank you to the CMAP for its invitation, and to all participants for the richness of the discussions and the valuable experiences shared!