What is the difference between arbitration and litigation?

Litigation resolves disputes in public courts with full appeal rights and broad discovery. Arbitration resolves them before a private arbitrator the parties choose, with limited appeal, usually more speed and privacy, and strong cross-border enforceability under the New York Convention.

How do you draft an arbitration clause?

Name the administering body and rules, set the seat, specify the number of arbitrators and the language, and define the scope of arbitrable disputes with any carve-outs. Address class-action waivers and fee allocation where they matter to your risk.

Are arbitration clauses enforceable?

Generally yes. In the United States the Federal Arbitration Act makes most arbitration clauses enforceable, though courts may decline to enforce clauses that are unconscionable or that conflict with specific consumer or employment protections.

Can an arbitration clause waive class actions?

Often yes in commercial and many consumer contexts, where courts have upheld class-action waivers, but enforceability varies by state and by claim type, and some employment and consumer statutes limit it.

Is arbitration cheaper than going to court?

Sometimes. Arbitration can be faster and avoids some litigation costs, but arbitrator fees and administrative costs can make it expensive, especially with a three-arbitrator panel or a lengthy proceeding.

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Clauses

Arbitration Clause

A contractual provision that requires the parties to resolve disputes through binding arbitration instead of court litigation.

Reviewed by

GC AI Solutions Team

•

Updated

June 2026

Definition

An arbitration clause is a contractual provision in which the parties agree to resolve disputes through arbitration rather than in court. It typically names the arbitration rules and administering body, the seat or legal place of arbitration, the number of arbitrators, and the governing language. Arbitration awards are generally final and binding, with limited grounds for appeal, and are enforceable across borders under the New York Convention. Arbitration clauses appear in commercial, employment, and consumer contracts, and in the United States their enforceability is governed by the Federal Arbitration Act.

Requires the parties to arbitrate covered disputes rather than litigate them in court
Names the administering body and rules (AAA, JAMS, ICC, or LCIA) that govern the proceeding
Sets the seat of arbitration, which fixes the procedural law and the courts that supervise the award
Specifies the number of arbitrators, the language, and how arbitrators are selected
Defines the scope of arbitrable disputes and any carve-outs, such as injunctive relief or IP claims

Mass arbitration of consumer and employment claims has pushed many drafters to add batching and bellwether procedures to their arbitration clauses.

What It Does

An arbitration clause changes where and how a dispute gets decided, moving it out of public court and in front of a private arbitrator the parties agree on. For in-house counsel, it is a forum-and-process decision made years before any dispute exists: it trades the appeal rights and broad discovery of litigation for speed, privacy, and cross-border enforceability. The clause sets the rules, the seat, the panel, and the scope of what must be arbitrated.

When You'll See It

"...arbitration in the state of Florida before a single arbitrator under the Federal Arbitration Act and pursuant to the Commercial Arbitration Rules of the American Arbitration Association, or its successor, then in effect. The decision of the arbitrator shall be rendered in writing, shall be final, and may be entered as a judgment in any court in the state of Florida or elsewhere. The Parties irrevocably consent to the personal jurisdiction and exclusive venue in the United States District Court for the Southern District of Florida..."

Source

Negotiate

If you want to compel arbitration

YOU FAVOR PRIVATE RESOLUTION

Write a broad scope: “any dispute arising out of or relating to this agreement.”
Name a single administering body and ruleset to avoid procedural fights later.
Add a class-action and mass-action waiver where it is enforceable in your jurisdiction.
Fix the seat in a jurisdiction friendly to arbitration and party autonomy.
Require the proceeding and the award to remain confidential.

If you want to preserve court options

YOU FAVOR FLEXIBILITY

Carve out claims for injunctive relief and IP infringement so you can move fast in court.
Add a dollar threshold so small disputes can go to small-claims court.
Negotiate a reasoned, written award and a limited appeal rather than a bare result.
Set fee allocation deliberately: each side bears its own, or the prevailing party recovers.
Add a mediation step before arbitration to create an off-ramp.

An arbitration clause is a bet about which forum you would rather be in when the relationship breaks. Decide scope and seat deliberately, because both are nearly impossible to change once a dispute starts.

Red Flags

A seat or administering body chosen by the counterparty in a jurisdiction hostile to your position
No carve-out for injunctive relief, so you cannot get a fast court order to stop irreparable harm
A fee-allocation provision that forces you to split high arbitrator costs regardless of outcome
A class-action waiver in a consumer or employment context where local law may void it, taking the clause with it
One-sided drafting that compels you to arbitrate while leaving the counterparty free to litigate

FAQs

Related Clauses

Governing Law

A contractual provision that selects which jurisdiction’s substantive law will be used to interpret and enforce the agreement.

Limitation of Liability

A contractual provision that caps the amount and types of damages one party can recover from the other.

Confidentiality

A contractual provision requiring one or both parties to keep specified information secret and use it only for an agreed purpose.

This content is for informational purposes only and does not constitute legal advice.

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