If you have ever been involved in civil litigation in the USA as an in-house lawyer you know that it is expensive, intrusive, slow, and often leads to unsatisfactory results, including lack of confidentiality and, sometimes, punitive damages. If that’s not enough, the U.S. system also provides for class-action litigation which can turn “small” claims into “big” claims. While some of this is unique to the U.S. system, these same issues are creeping into the litigation process in other parts of the world, including Europe and parts of Asia.
For the past 15 years or so, many practitioners and commentators have touted arbitration as the remedy to the many ills of litigation. Unfortunately, the arbitration process is steadily becoming just as bloated, slow, expensive, and unsatisfying as litigation, leading you to ask “why arbitrate at all?” My experience is that the arbitration process is not really the problem. Rather, it is the fact that those preparing arbitration clauses are not spending enough time digging into what they really want their arbitration process to look like if it ever becomes needed. Instead, I see contracts with a one sentence “arbitration clause” stating simply that all disputes under the agreement are subject to arbitration under the rules of [insert name arbitral body here]. If this is all there is to your arbitration agreement, you will let others control your arbitration process. Those “others” tend to be outside counsel (for both sides) who, unless directed otherwise, will fall back to their traditional litigation comfort zone. Consequently, unless you set out a detailed arbitration process, you will end up with just another version of traditional civil litigation.
In this edition of “Ten Things,” I search for the perfect arbitration clause. Alas, much like Moby Dick, El Dorado, Sasquatch, and honesty in politicians, the search comes up dry. Frankly, there is no such thing as a “perfect” arbitration clause because every situation is different. But, with a little work you can come up with a “really damn good” arbitration clause, one that will better suit your company’s interests and goals. It requires time and effort on your part, such as taking a long look at the clauses you are using now and asking yourself some tough questions about what you really want to get out of an arbitration process. If you’re ready to roll up your sleeves, here are some things you need to consider and think through when drafting an arbitration provision: