Model Clauses

Ensure an effective and proportionate response in the future should a dispute arise
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Have you checked your model dispute resolution clause lately?

Recommended model clauses are included at the end of this page. You can also download a pdf of our Model Clauses Guide here.

When was the last time you checked your model dispute resolution clauses that you include in your contracts or services agreements? Almost all private dispute resolution processes require the agreement of the parties to engage in the process. Almost always the dispute resolution clauses included in contracts and agreements for services are old, outdated and, in many cases, ineffective and unenforceable. Such clauses are typically added to contracts/agreements at the 11th hour when everything else has been scrutinised, debated, and agreed.

Dispute resolution clauses are usually not seen as particularly contentious or important. At a time of heightened interest and excitement about the subject matter of such contracts, there is often little appetite to talk about something that might be perceived as negative, or indeed threatening towards the relationship. Often the hope or presumption is that it is something that is included in a contract but will never be needed. Unfortunately, our experience tells us that conflict is an almost inevitable consequence of many commercial transactions/business relationships.

Parties already in dispute are highly unlikely to agree on anything, let alone to refer their dispute to a particular dispute resolution process/service. This is what makes good model clauses critical to enabling the prompt, proportionate and cost-effective resolution of disputes, should they arise in the future.

What makes for a good model clause? One that can be effectively and efficiently relied on to enable a dispute to be resolved promptly by whatever process is agreed. Model clauses need to be clear and certain in terms of both the process and the means of securing the appointment of the relevant third party neutral (for example, arbitrator, mediator, expert). Simply referring disputes arising to mediation or arbitration is ineffective and inefficient. Parties routinely spend significant time (and money) arguing over what the process should look like, who to appoint to be the mediator or arbitrator and procedural and timetabling matters. This can all be easily avoided by careful drafting of dispute resolution clauses.

Failing to engage in ADR could leave you tied up in knots

Written by Sam Dorne A seismic shift to the English legal system has been handed down by the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, in which the Court held that the lower County Court was wrong to decide that it did...

It’s up to the parties to frame the claim: Court of Appeal overturns decision where Judge became “third man” to the proceedings

Written by Maria Cole The Court of Appeal of England and Wales overturned a High Court decision where the Judge held a warranty had been breached on a basis which differed substantially from how the claim had been notified, pleaded and argued. Introduction The premise...

What are the implications of becoming a Contracting State to the New York Convention? 

Written by Alexander Lyall A recent decision in the Federal Court of Australia, CCDM Holdings, LLC v Republic of India (No 3),[1] has explored some of the intricacies of the New York Convention. The case provides an interesting analysis of state immunity and whether...

Dipping its ‘cryptoes’ in the water: poor litigation strategy ruins a valid arbitration agreement

Written by Alexander Lyall In Beltran, Julian Moreno and another v Terraform Labs Pte Ltd and others,[1] the Singapore High Court dismissed a cryptocurrency exchange’s application to have a dispute resolved by arbitration. As Terraform Labs Pte Ltd (Terraform) found...

Labelling correspondence “without prejudice” will not always grant the user protection

​Written by Sam Dorne When is correspondence labelled “without prejudice” truly to be treated as such?  The High Court of England and Wales has looked at this issue when deciding costs at the end of a claim. The Court set out guidance for when a party can successfully...
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