Have you ever wondered why lawyers insist that even the most basic agreements contain what appear to be pages and pages of ridiculous and trivial provisions? I am sure you have.
Well, as I have said before, the clauses you glance at (assuming you even look) are relevant and are important. You may recall a recent post about the value of a comma in an agreement. Ask Aliant how much it was worth. A reader of my blog referred me to an old English case where some poor sod was hanged over the interpretation of a comma in some statute or another. Ouch!
Well, one of the clauses you may see from time to time is a clause relating to the resolution of disputes. These often say (when they are included) something to the effect that if the parties to the agreement get into a fight they will settle it out of court, often by using one or a panel of arbitrators.
Now, sometimes people do not like the clauses because they may wish to utilise remedies not easily available if you arbitrate.
In a recent case out of Ontario (the name is not all that relevant except perhaps to lawyers) a party argued that the arbitration clause in their license agreement was an inappropriate mechanism for adjudicating a dispute because the subject matter of the dispute centred around a patent. Patent law is governed by the federal Patent Act and one party argued that an arbitration panel does not have jurisdiction to hear a dispute when the subject matter involved a patent.
The court disagreed, stating that the arbitration panel could adjudicate the matter. This is a clear victory for parties which want to include arbitration clauses in their agreements. Having been involved in a few large arbitrations, I am not sure they take less time or cost less money - but they certainly do have the ability to allow the parties to limit the extent to which the public may be exposed to what is often sensitive business information.
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