Contract Drafting

News & Analysis as of

Forced Arbitration Pervades Contractual Agreements, Binding Consumers

Margaret Jane Radin, author of Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, is of the point of view that the American court system is “allowing contract to gobble up tort.” In other words, the 37-year...more

First Things First: Design the Arbitration Process You Want

The principles for drafting a pre-dispute arbitration clause are straightforward. They do require an understanding of the legal relationship, which will be the subject of the clause, some sense of the nature of disputes that...more

Insurance is Big in Texas: In Deepwater Horizon Case, Texas Stretches a Policy’s Four Corners to Include Other Contracts

Last month, in In re Deepwater Horizon, Relator, the Supreme Court of Texas applied a fundamental principle of insurance law to a case with enormous financial implications. The owner of the Deepwater Horizon drilling rig had...more

Give Way or Yield? The jurisdiction of your contract does matter! (Law note)

Have you ever been to England? If so, you’ve likely seen their version of our “Yield” sign– the “Give Way” sign. It is a bit jarring to those from this side of the “big pond”....more

Arbitration Agreements Can Backfire on Employers

It is no secret that arbitration agreements may greatly reduce the risks that many employers face in disputes with employees. For example, when used correctly, such agreements can curb exposure to class actions by forcing...more

Texas Supreme Court Incorporates Limitations From An “Insured Contract” Into GL Policy

In In re Deepwater Horizon, Cause No. 13-0670, Slip Op., Feb. 13, 2015, the Texas Supreme Court held that an allocation of liability found in an “insured contract” would determine the coverage provided to an additional...more

Are You Sure You Want an Arbitration Clause? (Part 2 of 3)

Many business people, and even some lawyers, take it as an article of faith that any contract is improved by including an arbitration clause. If you ask them why they think a contract should contain an arbitration clause, you...more

What is ‘Blocking IP’?: Why You Should Care When Licensing Source Code

A client this week asked me to help him with a source code license. What started as a simple request with crafting a paragraph inevitably grew due to the concept of “blocking intellectual property.” While I would argue that...more

The Supreme Court of Texas Marries Contractual Limitations to Insurance Policies

In a case that has been closely watched by the oil and gas industry and its insurers, the Supreme Court of Texas issued its opinion in In re Deepwater Horizon on February 13, 2015, and settled the debate concerning whether a...more

When an Exception is Not an Exception…

Lawyers see non-disclosure agreements all the time. Some of our well-established clients may see literally hundreds of them over the course of a year. In fact, we all probably see so many of them that they may not always get...more

XL is Not Always the Right Fit: Sometimes the Right Contract Template is Not the Longest Contract Template

As a thin guy, I used to subscribe to the philosophy of wearing large clothes to look bigger than I was. What I actually looked like was a scrawny guy in ill-fitting clothes that were not overly comfortable....more

Contract Drafting 101

Do you feel like you learned a lot about contract law in law school, but very little on how to actually draft one? You’re not alone. Check out these principles of contract structure and organization, and you’ll have no...more

Texas Supreme Court Rules Additional-Insured Coverage is Limited by Underlying Indemnification Agreement in In re Deepwater...

In a much anticipated 8-1 decision, the Texas Supreme Court ruled Friday that BP is not entitled to additional-insured coverage in In re Deepwater Horizon, No. 13-0670 (Feb. 13, 2015)....more

The $750 Million Comma? BP Is Not Entitled To Coverage For The Gulf Oil Spill As An Additional Insured Under Policies Issued To...

The Supreme Court of Texas ruled on February 13, 2015, that BP is not entitled to coverage as an additional insured under insurance policies Transocean procured for the Deepwater Horizon. ...more

$750,000,000 Missing Comma Comes Unhinged in BP’s Additional Insured Claim

Action Item: Courts must consider whether an insurance policy incorporates other documents and the extent thereof in evaluating the existence of additional insured coverage. Parties should evaluate the policy and underlying...more

Considerations with Regard to “Material Adverse Effect” Clauses

In the mergers and acquisitions context, there is a risk that the occurrence of some event between signing and close may cause the value of the target to diminish significantly, making the deal no longer attractive to the...more

EU’s Chief TTIP Negotiator Releases Draft Chapter on Regulatory Cooperation

On February 10, 2015, the European Union’s (EU) chief negotiator on the Transatlantic Trade and Investment Partnership (TTIP) agreement released the EU’s initial proposal for the “legal text” of the all-important regulatory...more

Paris Energy Series No. 9: Expecting the Unexpected: The Force Majeure Clause

In August 2014, steel and mining company ArcelorMittal announced that it was suspending an expansion project to triple its iron ore production in Liberia due to the Ebola epidemic in West Africa. A few days earlier, Brazilian...more

Force Majeure Clauses: An "Out" for Suppliers Facing Shortages and Supply Chain Disruptions From West Coast Labor Dispute

With the ongoing West Coast labor dispute and increasing port congestion causing gridlock, suppliers should look to their contracts to determine whether they have the right to declare force majeure with their customers in the...more

Stock and Asset Sales: Preliminary Agreements

Prior posts discussed the basic advantages and disadvantages of structuring a sale of a business as a stock sale or an asset sale, as well as the initial considerations in agreeing to structure a sale as an asset purchase. ...more

Drilling Contracts – Avoiding Misunderstanding

Drilling contracts are at the core of upstream operational agreements. They come in many forms and are negotiated to varying degrees depending on the value of the contract, level of risk involved, and existence of regional...more

Letters of the Law: 'A' is for Attestation

Contracts do not need to be signed, but… An ‘attestation clause’ or ‘execution clause’ is the part of a contract which parties sign to indicate that they intend to be formally bound by the provisions of that contract....more

Contract-Drafting Bulletin - February 2015, Vol.1 Issue 1

In this issue: - Does Quality Contract Drafting Matter? - Shall I Dispense with ‘Shall’? Not Entirely - Interview with a Commercial Litigator - World of Boxing LLC v. King - Comments to a...more

Losses Associated with Cyberattack at Grocery Store do not Override Liability Cap

Grocery stores have been hit with a number of suits by their customers in recent years after a cyberattack of the store leads to a theft of customer financial information. Another type of suit arises frequently when such...more

What Exactly Do You Mean By “Reseller” Agreement?

I was recently reminded that the term “reseller” agreement can often mean different things to different people.  Misunderstandings about these types of relationships creates the potential for miscommunication and wasted time...more

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