Thursday, October 13, 2005
Once upon a time, dispute resolution clauses in contracts used specified arbitration. Then folks started to add a mediation component that the parties had to go through before arbitration could be invoked. Now, it's getting more common to see clauses that require some kind of “discussion” before even the mediation is triggered.
Are such “discussion” requirements enforceable? And what exactly is required? A take on the question from the U.K./Hong Kong perspective is Agreement to Negotiate/Mediate: A Matter for Careful Drafting by Chee Yean Choy of Jones Day in Singapore.