Drafting an Arbitration Agreement in 2022: 2021 Considerations
This article briefly reiterates the key items that generally have been included in an arbitration agreement and then reflects on some of the newer matters to be considered.
December 10, 2021 at 11:00 AM
9 minute read
The events of the past couple years have forced us all to take a step back and rethink a broad array of matters that were previously on "auto pilot." Arbitration agreements are no exception. Obviously, the traditional features of a solid arbitration agreement remain unchanged for the most part. That being said, a number of new considerations are now de rigueur as practitioners embark on a drafting exercise that aims to not only secure clarity on the historically important matters but also take into account new realities and social priorities. Below I will briefly reiterate the key items that we've generally wanted to include in an arbitration agreement and then reflect on some of the newer matters to be considered.
The main objectives in drafting an arbitration clause are to reduce (if not eliminate) the risk that a dispute will be referred to a court at any point other than once enforcement of an arbitration award is sought, and to ensure that nothing in the agreement could lead a court to reject enforcement once an award is rendered. An arbitration agreement should therefore be clear in reflecting the parties' intent to resolve disputes in arbitration, specify its scope (i.e., the nature of disputes that must be resolved in arbitration) and include an agreement that judgment may be entered on the award. It should also indicate which procedural rules will govern the arbitration and ensure that the laws governing the arbitration agreement itself as well as the substance of the dispute are designated in the arbitration agreement if not otherwise included in the parties' contractual arrangement. Additionally, it will name the body that will oversee the administration of the arbitration and the actual seat of the arbitration. Finally, it should include the number of arbitrators to be appointed and the method for selecting them. In international arbitrations, parties should also specify the language in which proceedings will be held. These are the core items to include in an arbitration agreement. There are obviously other matters, such as whether arbitrators can award punitive damages and attorney fees, the scope and limits of discovery, consolidation and joinder, and similar items that a practitioner may want to consider including to tailor the arbitration agreement to the specific matter at hand.
In addition to the foregoing, today's drafters are more often than not called upon to reflect on matters related to the global events and social priorities of the past couple years.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFatal Shooting of CEO Sets Off Scramble to Reassess Executive Security
5 minute readDeluge of Trump-Leery Government Lawyers Join Job Market, Setting Up Free-for-All for Law Firm, In-House Openings
4 minute readAre New York City Housing Providers Ready for the Fair Chance for Housing Act?
10 minute readTrending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250