There is an enormous amount of litigation involving boilerplate, as will be evidenced in the materials for this presentation. A slip in drafting a boilerplate provision can be outcome determinative in a dispute. This presentation will provide legal and drafting guidance on how to put together effective boilerplate in contracts.
Principles
- Boilerplate Is Substantive, Not “Just Boilerplate”
- Standard provisions can determine rights, remedies, risk allocation, and litigation outcomes.
- Small drafting differences can have significant consequences when a dispute arises.
- Drafting Must Start With the Governing Law
- Effective boilerplate requires understanding the statutory, common-law, and judicial rules governing the provision.
- Counsel should not assume that a familiar clause will have the same meaning or enforceability across jurisdictions.
- Precision Matters—Especially Where Rights Are at Stake
- Boilerplate should be drafted with the same care as the substantive business terms.
- Ambiguity, inconsistent terminology, undefined concepts, and unintended interactions between provisions can create costly disputes.
- Consider How Provisions Work Together
- Boilerplate clauses should not be drafted or reviewed in isolation.
- Provisions concerning governing law, dispute resolution, indemnification, limitations of liability, waivers, notices, assignment, force majeure, integration, and severability, for example, may interact in ways that materially affect the parties’ rights.
- Draft for the Dispute You Hope Never Happens
- Counsel should ask how the clause will operate if the relationship breaks down and the contract ends up in litigation or arbitration.
- The best boilerplate anticipates foreseeable disputes, allocates risk deliberately, and minimizes opportunities for competing interpretations.
Syllabus
- Why is boilerplate important
- The importance of knowing the law underlying the boilerplate
- General principles of drafting boilerplate
- Drafting suggestions for common boilerplate provisions
