[Go here for my New York Law Journal article based on this post.] [Revised Aug. 30 7:20 p.m. EDT to reflect comments by Mark and Richard; revised further Oct. 18 with respect to "arising out of and relating to," as discussed in this post.] Here's the standard arbitration clause recommended by the American Arbitration Association, as stated in the AAA commercial arbitration rules (free … [Read more...]
Archives for August 2009
An Instance of Formula Ambiguity
No one has ever mentioned to me MSCD chapter 13 (Numbers and Formulas) or asked me any questions about it, so evidently the subject isn't high on anyone's list of concerns. But I have a soft spot for that chapter anyway—it discusses the fiendishly subtle forms of ambiguity that can arise in expressing formulas in prose and mathematical equations, and it shows you how to avoid that ambiguity. I … [Read more...]
Referring to FedEx and its Competitors
A standard way of giving notice under a contract is by overnight delivery by FedEx or one of its competitors. To articulate this notion, many drafters use the word courier, with varying degrees of specificity. For example, the phrase nationally recognized overnight courier occurs in 204 contracts filed on Edgar last month as Exhibit 10 material contracts. Another word used, but much less … [Read more...]
“Including With Limitation”?
Reader Jason recently posted the following comment to my April 2007 post on including without limitation: I just ran across an instance of including with limitation XXX. I couldn't determine if with limitation meant: only; that XXX is included, but with limitations on what parts of XXX are included; or things that are limited, and XXX is one example of such things. Here’s an … [Read more...]
When to Provide for Indemnification
[Updated January 5, 2011] Now that my summer is officially over ... I suspect that many drafters think that an indemnification section should appear in contracts as a matter of course, much like a governing-law provision. But before you include an indemnification section, consider the pros and cons. Indemnification Can Benefit a Party Bringing a Claim Bring In Deep Pockets. If the … [Read more...]
Defining “Government Body”
[Revised Aug. 21 to reflect comments by Mark, Paul, and Pete] I interrupt my August recess to consult you all on how I should define "Government Body". Here's what I've come up with : "Government Body" means (1) the government of any country or of any political subdivision of any country, (2) any instrumentality of any such government, (3) any other person or organization authorized by law to … [Read more...]