Dispute, controversy, difference or claim

The basic principles of contract Go Premium File:Arbitrate.png Formation: capacity and authority · representation · misrepresentation · offer · acceptance · consideration · intention to create legal relations · agreement to agree · privity of contract oral vs written contract · principal · agent Interpretation and change: governing law · mistake · implied term · amendment · assignment · novation Performance: force majeure · promise · waiver · warranty · covenant · sovereign immunity · illegality · severability · good faith · commercially reasonable manner · commercial imperative · indemnity · guarantee Breach: breach · repudiation · causation · remoteness of damage · direct loss · consequential loss · foreseeability · damages · contractual negligence · process agent Remedies: damages · adequacy of damages ·equitable remedies · injunction · specific performance · limited recourse · rescission · estoppel · concurrent liability Not contracts: Restitution — quasi-contract — quasi-agency Index: Click ᐅ to expand: Contract Tort Restitution Comments? Questions? Suggestions? Requests? Insults? We’d love to 📧 hear from you. Sign up for our newsletter.

Beaming in live from the international arbitration centre, this fabulous model arbitration clause:

“Any dispute, controversy, difference or claim arising out of, relating to or having any connection with this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) ...”

As you can imagine it continues in this vein for a few hundred more words but the above is enough to pick out a couple of succulent legalistic delicacies.

Controversies

First, the timidity — absurdity, really — with which topics being suitable for arbitration are framed. You would think “dispute” really ought to do it: any contretemps grave enough to justify arbitration ought to make it over the bar to count as one of those.

But a mere controversy? I write out of concern for the personal well-being of those given to provoking people. Like the JC, who is not above airing his controversial views about legal contracts and those who negotiate them, especially once the bell rings and the children swarm out of school and pile into the local.

Now having aired a “controversial” view about, say, the utter wretchedness of the phrase, “any dispute, controversy, difference or claim arising out of, relating to or having any connection with this contract,” should we now expect to be hauled before an arbitral committee just to be put straight on the matter? It seems a bit of an over-reaction.

The existence thereof

Especially if, secondly, the contract didn’t exist in the first place. There is something of a paradox here.

For, should you and I differ in our opinions about whether we even have a contract, let alone one on such preposterous terms — if our failure to “meet minds” about whether we ever met minds over this ridiculous, alleged contract, is sufficiently animated to count as a “dispute” — you know, a proper full-blooded, wholehearted, litigatey one — then does it not rather put the cart before the horse for you to claim — “haha! it says here we must present our debate for adjudication to this forum!” — when the “here” to which you refer is the very contract that, if I have my “controversial” way, I will establish does not exist?

See also

• Paradox