When Pre-Arbitration Requirements Lead to Disputes Over Dispute Resolution Clauses

Attorneys Marisa Marinelli and Andrew Choi discuss some of the key reasons why contract dispute resolution clauses end up in litigation, what is the effect of noncompliance with pre-arbitration requirements and what parties should consider when drafting their dispute resolution clause to avoid this outcome. Absent clear language demonstrating that pre-arbitration requirements to negotiate or mediate are mandatory, courts and arbitral tribunals often find that such requirements are "aspirational," and that the failure to comply with them causes no real damage to the parties.

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