Drafting Dispute Resolution Clauses in Commercial Contracts: Forum, Venue, Parties, and More
Setting Your Clients Up for Success Before Disputes Arise
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Commercial Law
- event Date
Tuesday, August 8, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will provide counsel with practical tips for drafting alternative dispute resolution clauses in commercial contracts. The panel will discuss how well-drafted clauses can protect clients and make resolving matters easier and faster, allowing businesses to save time and money, avoid a long, drawn-out litigation process, and help the parties maintain confidentiality.
Ms. Biser represents owners, contractors, developers, architects and engineers, both in the United States and abroad, in all stages of the construction process. She focuses her practice on large, capital-intensive construction projects, with a particular emphasis on drafting and negotiating contracts for complex and unique construction and infrastructure, as well as litigating disputes both in the courtroom and in domestic and international arbitration. Ms. Biser is a frequent lecturer on construction issues. She has served as an adjunct professor, teaching a course on high-growth corporate transactions, in Cornell Law School’s Technology Law LL.M. program.
Mr. Tractenberg is a skilled international litigator who handles complex business disputes involving intellectual property, licenses, business torts and insolvency issues. He regularly structures new franchise programs, many of which are international. Mr. Tractenberg also defends and enforces franchise agreements. He has also served as special counsel to franchise companies.
Dispute resolution clauses are often relegated to the end of contractual negotiations or are dismissed as "boilerplate" language that's pulled from the internet or an old document--and the clause is recycled again and again without thought to the context of the transaction or contract. However, these clauses can have profound implications for how any dispute is resolved and the contractual rights and obligations enforced. Because these dispute resolution strategies are usually voluntary, planning ahead and agreeing to a contingency plan in the event of a dispute is the best way to ensure that these techniques are used in place of costly and time-consuming litigation. Also, when the background of a deal is technical, and when the deal involves two or more parties from different countries, the dispute resolution clause becomes immensely important if a dispute arises down the line.
A dispute resolution clause may cover both contractual disputes (e.g. a difference of opinion as to the meaning and effect of a particular contract clause) and non-contractual disputes (e.g. where party A alleges party B was negligent in its performance of the contract). The most common types of dispute resolution are mediation and arbitration, but these processes are flexible and have several variations. Parties may also specify their own process in the agreement, which may be outside traditional methods.
The dispute resolution clause should be clearly drafted and unambiguous. Also, counsel should carefully select the forum and venue and specifically define the parties subject to the dispute resolution process.
Listen as our authoritative panel reviews standard dispute resolution provisions and discusses best practices for avoiding pitfalls by drafting individualized clauses to suit the particular circumstances of the transaction.
- Types of alternative dispute resolution
- Mediation
- Arbitration
- Conciliation
- Mini-trial
- Summary jury trial (SJT)
- Early neutral evaluation
- Negotiation
- Best practices for drafting clear and unambiguous clauses
The panel will address these and other key issues:
- What should counsel consider when drafting dispute resolution clauses in commercial agreements?
- What types of disputes should be covered by these clauses?
- What are the advantages and disadvantages of the various forms of alternative dispute resolution?
- Is it possible to provide different dispute resolution methods for different types of disputes?
- Does a dispute resolution clause survive the termination of the contract?
- What are the special considerations or terms involved when the agreement involves parties from different countries?
