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The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in Publicly-Held Companies' Contracts

52 Pages Posted: 30 Aug 2006  

Theodore Eisenberg

Cornell University, Law School (Deceased)

Geoffrey P. Miller

New York University School of Law

Date Written: October 11, 2006

Abstract

We study a data set of 2,858 contracts contained as exhibits in Form 8-K filings by reporting corporations over a six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. Because 8-K filings are required only for material events, these contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. These contracts, therefore, provide evidence of efficient ex ante solutions to contracting problems. The vast majority of contracts did not require arbitration. Only about 11 percent of the contracts included binding arbitration clauses. The rate of arbitration clauses varied substantially by type of contract. For example, pooling and servicing agreements and trust agreements had no arbitration clauses while employment and licensing contracts had the highest rate of arbitration clauses, 37 percent and 33 percent respectively. Arbitration clauses are strongly negatively associated with standardization of contract terms: the more standardized the contract, the less likely it will mandate arbitration of disputes. Contracts with California connections tended to have high rates of arbitration clauses while contracts with New York connections tended to have low rates of arbitration clauses. Arbitration clauses were significantly more likely to appear in contracts with international connections, but even in such contracts, the clauses were infrequent in absolute terms. Only 20 percent of international contracts contained arbitration clauses compared to ten percent of domestic contracts. Our results suggest, in contracts involving two sophisticated actors, that the parties perceive preserving access to litigation to be value-enhancing compared to ex ante binding arbitration. This contrasts with widespread beliefs about arbitration's efficiency and with imposition of mandatory arbitration clauses in some standardized consumer transactions such as credit card and cellular phone contracts.

Keywords: arbitration, empirical studies, contracts

JEL Classification: D21, D23, F20, K10, K12, K40, K41

Suggested Citation

Eisenberg, Theodore and Miller, Geoffrey P., The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in Publicly-Held Companies' Contracts (October 11, 2006). Cornell Legal Studies Research Paper Series No. 06-023; NYU, Law and Economics Research Paper Series No. 06-35. Available at SSRN: https://ssrn.com/abstract=927423 or http://dx.doi.org/10.2139/ssrn.927423

Theodore Eisenberg (Contact Author)

Cornell University, Law School (Deceased) ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Geoffrey P. Miller

New York University School of Law ( email )

Center for the Study of Central Banks
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6329 (Phone)
212-995-4590 (Fax)

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