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ARTICLE · 12 APRIL 2023

Contractual Dispute Resolution Procedure As A Condition Precedent: Clarity Is Key

Cooley LLP
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Contractual dispute resolution mechanisms intended to avoid or narrow formal disputes through early dialogue are popular, particularly in long-term contracts.

United KingdomLitigation, Mediation & Arbitration
Alice Wong
Alice Wong
Harriet Jones
Harriet Jones
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Contractual dispute resolution mechanisms intended to avoid or narrow formal disputes through early dialogue are popular, particularly in long-term contracts.

The case of Kajima Construction Europe (UK) Ltd v Children's Ark Partnership Ltd1 serves as a reminder: a contractual Dispute Resolution Provision ("DRP") can be a condition precedent to commencing proceedings. In a departure from previous case law,2 the High Court in Kajima found a DRP does not actually have to be expressed as a condition precedent to be enforceable as one. However, the DRP does need to be set out as a mandatory obligation that is sufficiently clear and certain – which was not the case in Kajima itself.

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