Jenner & Block

"Creative Drafting of Arbitration Clauses: Resurrecting Arbitration's Benefits by Moving Beyond the Boilerplate," Bloomberg Law Reports, Vol. 2, No. 37

Partner Ross B. Bricker, Associate Amy D. Wills and former associate Courtney M. Beemer address conflicts that arise during arbitration that impede its intended purpose of being an efficient, timely, private, and less expensive alternative to courtroom litigation. According to the authors, since parties considering arbitration generally want a cost-effective and streamlined process, it is necessary to spend time and effort at the outset of deal negotiations to create a clause that maximizes arbitration’s benefits and limits drawbacks. The authors state that “attorneys who think outside the box to custom-fit an arbitration clause to the specific needs of their clients in the particular deal can make arbitration’s benefits a reality for their clients, and make its attendant sacrifices worthwhile.” The authors highlight some of the unique procedures used in the Continental legal tradition as a source of inspiration for drafting a creative and effective domestic arbitration clause.  For example, the creative drafter may include provisions that favor up-front disclosure of relevant evidence over traditional "request and respond" production requests and interrogatories, document submission over witness examination, and arbitrator led and controlled discovery and expert testimony.