Corporate, M&A, Finance

Six Critical Questions to Ask Before Commencing Arbitration

September 28, 2025 9 min read by Tahmidur Remura Wahid

Before You File: Six Critical Questions to Ask Before Commencing Arbitration

A TRW Law Firm guide with London & Dubai perspectives

Who this is for: Founders, CEOs, GCs, project directors, lenders, and investors facing a serious cross-border dispute and wondering, “Do we pull the arbitration trigger now?”
Why TRW: With teams in Dhaka, London, and Dubai, we blend English-law firepower with GCC execution and South-Asia project depth. We help you decide if you should arbitrate, how to position the case, and where you will actually get paid.

The 30-Second Takeaway

Arbitration can be fast, private, expert-driven, and globally enforceable—but only if you (1) pick the right forum, (2) clear contractual preconditions, (3) budget and resource properly, (4) have the evidence, (5) can enforce against real assets, and (6) appoint the right team with a sequenced strategy. Miss any one of these and you risk a costly detour.

Use this guide as a pre-filing playbook. And if you want a deeper explainer of the process itself, see our pages on International Arbitration & Dispute Resolution and sector-specific insights linked below.

Question 1 — Is Arbitration the Right Forum for This Dispute?

Even when your contract contains an arbitration clause, a reflex filing is not always optimal.

Start with the clause

Is arbitration mandatory or optional?
Is there a multi-tier process (negotiation → mediation → arbitration)?
Which rules (ICC/LCIA/SIAC/UNCITRAL)? Which seat (London/Paris/DIFC, etc.)?
Does the clause carve-out urgent interim relief for courts?

Substance & objectives

Confidentiality: Do you want to stay out of the headlines?
Expertise: Does the dispute hinge on technical or quantum issues (EPC, oil & gas, M&A adjustments, pricing formulae) that arbitrators can better parse?
Speed vs leverage: Would a court-ordered injunction (freezing order, delivery up, site access, data preservation) give you decisive leverage more quickly?

Alternatives

Negotiation or mediation may resolve commercial friction without burning bridges or incurring sunk costs.
In some scenarios (fraud, criminality, IP piracy), court first can be smarter.

TRW tip (London & Dubai): Where speed and enforceability collide, we sometimes pair urgent court measures in London or DIFC with a swift arbitration filing, using each system for its strengths.

Explore: International Arbitration & Dispute Resolution

Question 2 — Have You Satisfied the Preconditions to Arbitrate?

Many clauses impose conditions precedent. Skipping them can derail jurisdiction.

Common preconditions

Cooling-off or amicable settlement periods.
Mediation or structured negotiation.
Dispute boards (DAB/DAAB) in FIDIC contracts.
Notice and time-bar provisions (often strict, sometimes 28 days).

FIDIC focus (construction & infrastructure):

Timely Notice of Claim (often 28 days).
DAAB referral before arbitration.
Notice of Dissatisfaction window.
Waiting period after DAAB decision.

Non-compliance consequences

Jurisdictional objections, stays, or dismissal.
Loss of otherwise valid entitlements due to time bars.
Cost sanctions for “rushing to arbitrate”.

What if the other side frustrates the process?

Document non-cooperation (e.g., refusal to constitute the DAAB).
Seek a tribunal or institution order excusing strict compliance where appropriate.

Checklist: Are we green-lit to file?

☐ Required notices served (with proof).
☐ Pre-steps (negotiation/mediation/DAAB) documented.
☐ Waiting periods observed or excused.
☐ Limitation periods still open.

For contract design and claims hygiene, visit:
Corporate & Commercial Contracts • International Arbitration & Dispute Resolution

Question 3 — What Will It Cost, and Is It Worth It?

Arbitration costs are predictable if you plan them. They’re painful if you don’t.

Cost components

Tribunal fees: depend on institution, number of arbitrators, and claim size (sole arbitrator is cheaper for modest disputes).
Institutional fees: admin fees per rule set.
Experts: technical, delay/quantum, valuation—often decisive and not cheap.
Hearings: venue/virtual platform, transcripts, interpreters, travel.
Legal fees: the largest slice (case strategy, pleadings, disclosure, witness prep).

Cost recovery?

Most rules allow “costs follow the event,” but tribunals wield wide discretion and often award only a portion. Budget on net recovery, not perfection.

Cost-control levers

Right-size the tribunal (sole vs three).
Narrow issues early; stage quantum after liability where sensible.
Use proportional disclosure and tiered confidentiality to reduce data-handling spend.
Adopt a document-first case theory (arbitration is document-driven).

Funding & cash-flow

Consider third-party funding or portfolio arrangements where claim value is strong but liquidity is tight.
Map security for costs risk (esp. claimant companies with thin balance sheets).

We scope transparent fee models and staged budgets on:
International Arbitration & Dispute Resolution

Question 4 — Do You Have the Evidence to Win (Not Just the Story)?

Arbitration rewards paper trails and discipline.

Document essentials

The signed contract plus amendments, variations, change orders.
Notices (time and cost), site instructions, correspondence logs.
Programmes/schedules, progress reports, daily records, meeting minutes.
Invoices, certifications, payment trails.
Board minutes or emails that prove authority/consent.

FIDIC notices (strict means strict)

Late or non-compliant notices can be fatal, even where equity favours you.
Train site teams; use standardised templates; centralise logs.

Witnesses & experts

Identify percipient witnesses early; lock down availability.
Use experts sparingly but surgically: delay/quantum, engineering, valuation.

Evidence readiness test

Can you tell a timeline in 2 pages with exhibits that do the heavy lifting?
Can a neutral arbitrator grasp causation and quantum in a morning?

If the answer is “not yet,” pause. Build the record first. That’s faster than losing on principle.

Question 5 — Can You Enforce (and Against What, Where)?

A beautiful award is worthless if you can’t turn it into cash.

Know the target

Solvency: Is the counterparty liquid? Backed by a parent?
Assets: Where are bank accounts, receivables, JV dividends, inventory, ships/aircraft?
Corporate structure: Which affiliates own attachable assets?

The New York Convention (1958)

Recognised by most trading states; courts should enforce foreign awards subject to narrow Article V defences (agreement validity, notice, scope, public policy, etc.).
You still enforce where the assets are—each jurisdiction has its own procedures and quirks.

Sovereigns/SOEs

Immunity limits: commercial-use property is often attachable; diplomatic/sovereign-function assets are not.
Use waivers and target commercial flows (receivables, JV distributions).

Sanctions & banking

If the debtor or its banks are sanctioned, plan licences, escrow, and approved routing.
Banks, not courts, are often the real gatekeepers—satisfy their compliance teams.

Multi-front strategy

File recognition in 2–3 asset hubs at once to prevent asset flight.
Consider ex parte protective measures where available.

TRW’s Dhaka–London–Dubai footprint is built for asset-led enforcement. Learn more at:
International Arbitration & Dispute Resolution • Investment Disputes & ICSID

Question 6 — Do You Have the Right Team and a Sequenced Strategy?

Arbitration is its own craft, not “court but private.”

Team composition

Counsel who live arbitration (case management, evidence discipline, tribunal dynamics).
The seat matters: English-law issues in London; conduit and GCC exposure in DIFC/Dubai; project footprints in South Asia—choose a team that spans them.
Early quantum and delay input avoids wasted pleadings.

Strategic sequencing

Pre-filing case memo (merits, quantum, defences, enforcement map).
Asset scan and licensing (if sanctions touch the file).
Forum choreography (seat, rules, arbitrator profile).
Interim relief plan (court or tribunal) if needed.
PO1 design: fairness, confidentiality, data security, proportional disclosure, hearing logistics.
Settlement runway: when to mediate; how to convert deals into consent awards.

Arbitrator selection

Prioritize subject-matter fluency, procedural firmness, and availability.
Avoid “over-appointment” and disclosure landmines; reputationally solid chairs move cases.

Bonus — Is Now the Right Time to File?

Timing wins cases.

Limitation periods: Don’t miss them—diarise contract and statutory deadlines.
Negotiations: If talks are real, a short standstill or tolling agreement may preserve rights without provoking escalation.
Political/regulatory horizon: For sovereign/SOE cases, elections and regulatory shifts can change the enforcement climate.
Cashflow: Are you ready to fund the first 6–9 months? If not, fix that first.

A Simple Decision Matrix (Green/Amber/Red)

Dimension	Green (Go)	Amber (Fix First)	Red (Stop)
Forum	Clause clear; seat/rules fit goals	Clause ambiguous; interim relief needed	Non-arbitrable; criminal/public law issues dominate
Preconditions	All steps satisfied or excused	Gaps but curable quickly	Hard time bars; DAAB skipped; clause defective
Costs	Budgeted; funding path secure	Costs high but manageable with phasing	Cash gap; adverse security-for-costs risk
Evidence	Strong docs; notices compliant	Document gaps but recoverable	No records; missed notice deadlines
Enforcement	Asset map solid; hubs identified	Partial map; some uncertainty	No visible assets; sovereign immunity walls
Team/Strategy	Experienced team; plan sequenced	Team in place but gaps to fill	No arbitration experience; no strategy

If you are in Green or light Amber, file with confidence. Dark Amber or Red? We’ll help you triage and close the gaps—often within weeks.

Your Pre-Arbitration Checklist (Printable)

☐ Contract triage: clause, seat, rules, carve-outs, governing law.
☐ Preconditions: negotiation/mediation/DAAB satisfied (with proofs).
☐ Limitation: diary dates, stop-clock if needed.
☐ Evidence room: contracts, notices, logs, financials, timeline deck.
☐ Witness & expert: shortlist, availability, scopes.
☐ Budget: tribunal, institution, experts, counsel; funding/escrow plan.
☐ Enforcement map: assets, jurisdictions, sanctions/licences.
☐ Interim relief: court vs tribunal; draft papers ready.
☐ Arbitrator profile: candidates, conflicts, availability, procedural style.
☐ PO1 blueprint: disclosure scope, confidentiality tiers, hearing logistics.
☐ Settlement strategy: mediation window; consent-award template.

How TRW Executes (London & Dubai case paths)

London-first path

English-law clause; London seat; LCIA/ICC rules.
Option for urgent court orders (e.g., freezing relief).
Bank-friendly jurisdiction for escrows and licences.

Dubai/DIFC path

DIFC seat for common-law familiarity in the GCC.
Conduit potential into UAE execution where assets lie.
Strong fit for MENA projects and regional banking flows.

We often run dual-track enforcement prep (London + DIFC) from Day 1, especially in energy, construction, and shareholder disputes.

Explore: International Arbitration & Dispute Resolution • Investment Disputes & ICSID • Corporate & Commercial Contracts

Sample Pre-Arbitration Notice (Short Form)

Subject: Notice of Dispute and Commencement of Tier-1 Procedures
We refer to the [Contract/Agreement] dated [•] between [Party A] and [Party B]. A dispute has arisen regarding [brief description]. Under Clause [•] (Dispute Resolution), the Parties shall [negotiate/mediate/DAAB] before arbitration.
We hereby give formal notice of dispute and invite you to commence [negotiation/mediation/DAAB] within [X] days. We reserve all rights and remedies, including time and cost claims under Clause [•].
Signed,
[Authorised Signatory]

Adapt this to your clause; ensure valid service and keep proof.

Bottom Line

Arbitration is powerful when it’s the right tool, used the right way at the right time. Make the decision with eyes wide open: forum, preconditions, cost, evidence, enforcement, and team. If each box is ticked—or can be—file decisively and prosecute efficiently.

TRW’s Dhaka–London–Dubai team builds your case from paper to payment—and keeps options open for negotiation, interim relief, and multi-hub enforcement.

Talk to TRW

Tahmidur Remura Wahid (TRW) Law Firm
Dhaka (Headquarters): House 410, Road 29, Mohakhali DOHS
Dubai: Rolex Building, L-12, Sheikh Zayed Road
London: 330 High Holborn, London WC1V 7QH, United Kingdom

Phone: +8801708000660 | +8801847220062 | +8801708080817
Email: [email protected] | [email protected] | [email protected]

Related pages for deeper dives (internal):