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Black’s Law Dictionary defines “Boilerplate” as: “Language which is used commonlyin documents having the same meaning; used to describe standard language in a legal document that is identical in instruments of a like nature.” Boilerplate language certainly serves apurpose to reduce transaction costs and avoid protracted negotiation over what, in many instances, are standard terms. But, too often, lawyers rely on this common usage of the term“boilerplate” when examining, or rather glossing over, relatively customary contractual provisions such as recitals, statements of consideration, and the ever-dangerous miscellaneous section. Like other contractual provisions, mere reliance on form boilerplate provisions can yieldunintended and often unfavorable results. Therefore, attorneys are cautioned to review theseprovisions with the same care as they would review the remaining terms of a given contract.

November 1, 2019Framk Emmert, Begaiym Esenkulova

Why Can't We Be Friends? Protecting Investors While Also Protecting Legitimate Public Interests

International investment law was born in a day and age when investors located in powerful and wealthy developed countries were looking for protection against expropriation and other arbitrary interference with their investments by undemocratic and unaccountable governments in developing countries. Bilateral and multilateral investment protection treaties were drafted by the developed countries to give rights and remedies to their investors.

November 7, 2025Jeff Andrews

Technology Disputes and How to Handle Them

Disputes under technology contracts can be more complex—and more commercially fraught—than in many other settings. The convergence of technical performance obligations, evolving standards, interoperability dependencies, software defects, intellectual property licenses, service levels and cybersecurity issues creates a complex landscape. What looks like a simple “breach” question under a single contract may involve multiple layers of interdependent systems and teams. In addition, the business consequences of disrupted technology goods and services can be severe. Delays, outages or performance failures may cascade, affecting downstream systems, customers, compliance and revenue. As a result, technology disputes are uniquely challenging. When they do arise, litigation and arbitration are costly—not just in legal fees, but in business disruption, reputational exposure and strained relationships. For attorneys, the best approach for handling these disputes is a proactive, structured one: draft better contracts, administer them rigorously and resolve disputes efficiently. Drawing from practitioner experience, published arbitral guides and commentary in the technology arena, this article provides suggested best practices on how to reduce the likelihood of disputes under technology contracts, manage them effectively when they do arise, and navigate them efficiently if they escalate.

November 6, 2021Christopher E. Moore

Key Employment Issues Coming Out of the Pandemic

We are several months into a world with COVID-19 vaccines. However, for a variety of reasons, many remain unvaccinated. Employers are asking the question: “Can we require employees to be vaccinated against COVID-19?” In general, the answer is yes. Indeed, the Biden administration has tasked OSHA with rule-making that would require Employers with 100+ employees to mandate a vaccine or weekly testing. Employers may implement mandatory vaccination programs, subject to limited exemptions. Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and are particularly prevalent among healthcare providers. Some variability exists under federal law and among federal agencies, but for the most part, mandatory programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA).

November 10, 2017John K. Boyce III

The Pathological Arbitration Clause

March 13, 2015John R. Strawn Jr.

Pros and Cons of Arbitration

The continuing decline in the number of jury trials, coupled with the public policy in favor of arbitration, may suggest that arbitration is the fastest and most cost efficient forum for dispute resolution. For the right case with the right parties, arbitration can be an efficient forum to resolve a dispute. But while that might be true in some cases, it is not true for all cases. Jury trials still offer many advantages over arbitration, and the 7th Amendment still needs to be preserved. When deciding on a dispute resolution forum, the practitioner should advise the client of the pros and cons of each process, so that the client can make an informed decision—and not just a knee jerk reaction.

March 13, 2015David E. Harrell Jr., Ann Ryan Robertson, Harry H. Thompson

The (Surprisingly Complex) Art of Drafting Arbitration Clauses

Parties often view arbitration as a concept distinct from litigation. For commercial disputes, however, arbitration and litigation have several similarities. Each is a form of dispute resolution; each employs a neutral person to resolve differences, whether factual or legal; each depends upon rules that are (generally) developed before the dispute arises. And when all is said and done, at least one party is going to be unhappy with the result because, like litigation, arbitration is a zero-sum game: at the end of the day someone loses.

November 21, 2015Ricardo G. Cedillo, Brian Lewis

Litigation v. Arbitration: The Case for Litigation (or Against Arbitration)

Arbitration provisions have become the rule rather than the exception in virtually all commercial agreements. Lauded for its flexibility, informality, and confidentiality, arbitration rose in popularity in the late 1980s and early 1990s. Arbitration became increasingly popular for defendants facing high-volume litigation, and looking to avoid the perceived risks in a traditional court setting.

November 8, 2013John K. Boyce Iii

How to Write a Bad Arbitration Clause

Arbitration is here to stay. Driven by what parties perceive as deficiencies of the formal judicial system, including expense, protracted length, gamesmanship, belligerency and wastefulness, arbitration has grown exponentially in the last ten years. Because of its confidentiality, empirical statistics are difficult to come by. Nonetheless, the American Arbitration Association, the largest administrator in the world, notes a 46% increase in total case filings 2007 to 2012 — i.e., from 127,729 to 187,596 cases per year (including commercial, employment, labor, construction and no-fault issues). Courts, both federal and state, continue wholeheartedly to sanction this trend. Hence, arbitration is highly favored under the law. Moses H. Cone Memorial Hospital v. Mercury Constr. Corp.,460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Safer v. Nelson Financial Group, 422 F.3d. 389, 293 (5th Cir. 2005); Ponderosa Pine Energy, LLC v. Tenaska Energy, Inc., 376 S.W.3d 358, 369 (Tex. App. — Dallas, 2012, no pet. history) (citing Prudential Securities , Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex. 1995).

March 15, 2013John K. Boyce, Iii

An Overview of the Arbitration of Employee Disputes In Texas

Arbitration is here to stay. Driven by what parties perceive as deficiencies of the formal judicial system, including expense, protracted length, gamesmanship, belligerency and wastefulness, arbitration has grown exponentially in the last ten years. Because of its confidentiality, empirical statistics are difficult to come by. Nonetheless, the American Arbitration Association, probably the largest administrator in the world, notes a 46% increase in total case filings 2007 to 2012 — i.e., from 127,729 to 187,596 cases per year (including commercial, employment, labor, construction and nofault issues). The Financial Industry Regulatory Authority (“FINRA”), where arbitration is mandated in agreements with securities brokers, notes an average caseload of 6,822 case per year. See www.finra.org/ArbitrationandMediation/FINRADisput eResolution/AdditionalResources/Statistics/index.html. Courts and legislatures, both federal and state, continue to sanction this trend. Given the $200 to $300 billion annual cost of civil litigation, arbitration’s dramatic increase must be viewed as a seismic shift in the notions of justice in this America. Formal studies also confirm general public acceptance of the process. See, e.g., Business-to-Business Arbitration in the United States: Perceptions of Corporate Counsel, Rand Institute for Civil Justice (2011), www.rand.org/content/dam/rand/pubs/technical_report s/2011/RAND_TR781.pdf; Dispute-Wise Management: Improving Economic and Non-Economic Outcomes in Managing Business Conflicts American Arbitration Association (2003)

March 15, 2013Coyt R. Johnston Jr., Sean T. Hamada, Rachany T. Son

Navigating the Social Media Minefield

Let’s face it, we live in a world where social media has infiltrated virtually every aspect of our lives. Terms like friending, liking, poking, tweeting, re-tweeting, tagging, status updates, hashtags, and blogging have become as common as email, text messaging or websites. Over the fairly recent past, the use and popularity of social media has spread like wildfire. While Facebook™ leads the way with one billion monthly active users1, Twitter™, LinkedIn™, and the like are not trailing far behind. The primary purpose of social media is to allow users to digitally connect their lives, thoughts, and experiences to other people. And, the advancements in technology allow such connections, with very little and sometimes no effort or even involvement from the user. While social media makes it frighteningly easy to network and form these connections with other people, for the practicing lawyer, it is important to remember that these “other people,” with whom social media connects us, include lawyers, judges, jurors, clients, and potential clients, making these platforms potential land mines waiting to be triggered by the unsuspecting casual user. This article serves to explore the complex issues that have arisen in the face of evolving technology and discusses the Texas Disciplinary Rules of Professional Conduct (TDRPC) that are implicated as a result of these changes.

March 15, 2013Akash D. Sethi, Derrick Carson, Brad L. Whitlock

Boilerplate Provisions

Black’s Law Dictionary defines “Boilerplate” as: “Language which is used commonly in documents having the same meaning; used to describe standard language in a legal document that is identical in instruments of a like nature.”1 Boilerplate language certainly serves a purpose to reduce transaction costs and avoid protracted negotiation over what, in many instances, are standard terms. But, too often, lawyers rely on this common usage of the term “boilerplate” when examining, or rather glossing over, relatively customary contractual provisions such as recitals, statements of consideration, and the ever-dangerous miscellaneous section. Like other contractual provisions, mere reliance on form boilerplate provisions can yield unintended and often unfavorable results. Therefore, attorneys are cautioned to review these provisions with the same care as they would review the remaining terms of a given contract.

October 15, 2011Ann D. Foster

Practicing Law and Wellness: Modern Strategies for the Lawyer Dealing with Anxiety, Addiction and Depression

If there is a take-away message from Practicing Law and Wellness: Modern Strategies for the Lawyer Dealing with Anxiety, Addiction and Depression, it is this: There is a solution.

October 23, 2009David E. Harrell Jr.

Developing Alternative Dispute Resolution Programs

This paper will provide an overview of the law of arbitration and identify some considerations for attorneys who counsel clients about whether arbitration might be an appropriate dispute resolution vehicle for their relationship and how to shape their arbitration framework.