Drafting for Dispute Resolution
20 Pages Posted: 11 Nov 2016 Last revised: 28 Mar 2018
Date Written: November 10, 2016
This is a brief guide to drafting for dispute resolution. Topics covered include include mandatory-arbitration provisions, class waivers, choice of law, choice of venue, exculpatory and liquidated-damages clauses, fee and cost allocations, and more. Such provisions have gained widespread attention in recent years, following a series of defendant-friendly U.S. Supreme Court decisions, critical coverage in the popular press, and efforts by federal agencies to stymie the private sector's increasingly widespread use of contractual dispute-resolution provisions.
In light of the growing importance of dispute-resolution provisions, this guide seeks to concisely identify and explore, from a transactional perspective, the relevant questions, considerations, and law relating to these powerful tools. It also provides illustrative examples of well-drafted provisions, often drawn from real-world legal instruments. The target audience includes practitioners, scholars, businesspersons, and other analysts seeking to learn and apply best practices when planning and drafting for dispute resolution. It can also serve as a reading assignment for professors who wish to teach a one- or two-unit lesson on this topic.
Keywords: Contract how to draft arbitration provision class action waiver dispute resolution boilerplate exculpatory clause choice of law choice of forum venue Concepcion, Italian Colors example arbitration sample choice of law
Suggested Citation: Suggested Citation