To What Degree of Certainty Must a Dispute Resolution Clause Be Drafted?
David L. Spencer
La Trobe University
May 2, 2003
Australasian Dispute Resolution Journal, Vol. 14, No. 153, 2003
Two recent cases have once again drawn attention to the problem of drafting enforceable dispute resolution clauses in contracts. These cases have highlighted the fact that since the decision in 1995 in Elizabeth Bay Developments v. Boral Building Services some of the drafters of such clauses have seemingly learnt little from the way courts treat such clauses and the available drafting mechanisms that may allay the courts concerns and ultimately hold dispute resolution clauses enforceable. This paper will review the case law since the NSW Supreme Court's decision in Elizabeth Bay, juxtapose it with the alternative view of the Victorian Supreme Court in Computershare Limited v. Perpetual Registrars Limted & Ors and suggest a number of strategies for satisfying the legal requirements of the enforceability of dispute resolution clauses.
Keywords: dispute resolution, law, good faith negotiation
Date posted: September 3, 2008