Dispute, controversy, difference or claim

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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.

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.

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,” we would not expect to be hauled before an arbitral committee just to be put straight on the matter.

Especially if, secondly, the contract didn’t exist in the first place, or if the JC wasn’t party to it. There is something of a paradox here. For should you and I differ in our opinions about whether we have a contract at all, let alone one on such preposterous terms — if our failure to meet minds about whether we ever met minds over this ridiculous, alleged contract, even with sufficient a degree of agitation for it to count as a dispute — a proper full-blooded, wholehearted, litigatey one — then does it not rather put the cart before the horse to claim we must present our debate for adjudication to the forum set out in the very contract that, if I have by “controversial” way, does not exist?