Florida Law Review Forum

Larry A. DiMatteo
Questioning the Ubiquitousness, But Not the Value, of Arbitration Carve-outs
Response to Christopher R. Drahozal & Erin O’Hara O’Connor, Unbundling Procedure: Carve-Outs from Arbitration Clauses

Christopher R. Drahozal & Erin O’Hara O’Connor’s article entitled Unbundling Procedure: Carve-Outs from Arbitration Clauses impressively describes the phenomena of carving-out and carving-in in dispute resolution clauses. My review of numerous international contracts, especially those involving the sale of goods, has found that the use of standard or boilerplate arbitration clauses is prevalent. Despite their findings of the existence of customized dispute resolution clauses through the use of carve-outs and carve-ins, the more normative side of their analysis is of more fundamental importance—the abdication by lawyers in failing to customize important and ubiquitous clauses, such as arbitration and force majeure clauses. Read More.