When drafting and negotiating an arbitration agreement, parties may focus heavily on the express terms, such as the scope of the agreement and the rules governing the arbitration process. However, it is important to also consider the implied terms that may be read into the agreement.

Implied terms are terms that are not expressly stated in the agreement but are nonetheless understood to be included. These terms may arise from the circumstances surrounding the agreement, the intent of the parties, or industry customs and practices.

One common implied term in arbitration agreements is the requirement of a neutral arbitrator. While it may seem obvious that the arbitrator should be neutral and impartial, it is not always expressly stated in the agreement. Nonetheless, it is generally accepted that arbitrators must be independent and unbiased.

Another important implied term is the requirement of confidentiality. While some arbitration agreements may specifically address confidentiality, others may not. Nonetheless, parties typically expect that the proceedings and award will be kept confidential.

Other implied terms that may arise in arbitration agreements include the requirement of good faith and fair dealing, the duty to disclose relevant information, and the prohibition on ex parte communications.

It is important for parties to consider these implied terms when drafting and negotiating arbitration agreements. By doing so, they can avoid disputes and ensure that the agreement accurately reflects their intentions. It is also important to note that the law regarding implied terms in arbitration agreements may vary depending on jurisdiction, so parties should consult with experienced counsel to ensure that their agreement complies with applicable law.

In conclusion, while express terms are important in arbitration agreements, it is also important to consider the implied terms that may be read into the agreement. These terms can help clarify the intent of the parties and avoid disputes down the road. As always, consulting with experienced legal counsel can be instrumental in ensuring that the agreement is comprehensive and effective.