The Twin E’s of Arbitration Provisions in Commercial Agreements: Enforceability and Ethics

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The inclusion of alternative dispute resolution (ADR) provisions in commercial contracts and in retainer agreements has become commonplace. As a substitute to litigation, arbitration remains a favored method for dispute resolution outside of the courthouse. 

In this presentation, we will unpack emerging issues related to the enforceability of arbitration provisions in commercial contracts and corresponding ethical requirements that arise from including such clauses in retainer agreements. 

The panel will discuss themes including:

• The relationship between the sophistication of parties to a commercial contract and whether an arbitration provision may be deemed unenforceable absent an express waiver in writing.

• How litigation conduct may preclude invocation of an otherwise enforceable arbitration provision. 

• The implications of ABA Model Rule 1.4 (Communications) and level of disclosure provided to clients with respect to the scope and meaning of ADR provisions in retainer agreements.

 

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