Do you want the dispute-resolution provisions of this agreement to apply just to contract claims, or do you want them to apply also to other kinds of claims?

A recurring source of confusion is what kinds of disputes are governing by the dispute-resolution provisions of a given contract. In particular, do they cover just contract claims, or do they also apply to tort claims and statutory claims?

Presumably you could elect to have the dispute-resolution provisions govern just contract claims, leaving other claims to be resolved by default rules. But it’s unlikely that would accomplish anything. Unless some aspect of substantive state law makes it preferable to have the law of some other state apply, or to leave it to chance, it would make sense to have the dispute-resolution provisions govern all claims.

It’s standard for drafters to attempt to articulate that notion by relying on phrases such as “arising out of and relating to.” Koncision prefers to address the issue directly by referring not only to contract claims but also to claims arising out of the subject matter of the contract. If the context permits, it’s best to tailor how you articulate the latter concept to reflect the contract in question. In the case of confidentiality agreements, Koncision uses the following language: “arising out of disclosure or use of Confidential Information.”

For more on this issue, see Kenneth A. Adams, The AAA Standard Arbitration Clause: Room for Improvement, New York Law Journal, Mar 9, 2010, and this post on The Koncise Drafter.

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