The most expensive clause in a contract may be the one nobody
notices until a substantial disagreement arises — the dispute
resolution clause.
A poorly chosen forum or process can add years of delay and
millions in cost. Likewise, the choice of law and expert
determination provisions, if not carefully chosen, can result in
serious disadvantages.
In this article, we encourage business leaders to prioritize
discussions about the resolution of potential conflicts and embrace
a strategic mindset when drafting dispute resolution
provisions.
As recent scholarship and best practices make clear, there is no
"one size fits all" approach to dispute resolution. Use
of a boilerplate clause is ill advised and likely to lead to
expensive problems down the line. The optimal approach depends on
the type of business involved, the relationship between the parties
and their relative bargaining power, as well as the nature and size
of any anticipated disputes, enforcement
