A Review of the American Arbitration Association’s New ClauseBuilder Tool
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In December 2012, the American Arbitration Association (AAA) launched their ClauseBuilder tool online. Anyone can access this tool without signing on to the AAA’s website by going to www.clausebuilder.org. The AAA indicates that the tool will assist “individuals and organizations in drafting clear and effective arbitration and mediation clauses.”
In the initial news release, the AAA noted that the tool is based on the AAA’s standard arbitration agreement and that it is limited to commercial arbitration contracts. Because most intellectual property related agreements (e.g., intellectual property licenses, development agreements, etc.) are considered commercial agreements, this tool can be a valuable resource for IP drafters. Because the tool enables a user to customize the standard clause with a wide variety of options, at a minimum, the tool is a useful checklist of issues to consider when drafting an alternative dispute resolution clause or section for an agreement. One caution that should be noted is that the basic clause is the default commercial arbitration or arbitration/mediation clause. If you want an arbitration to be governed by the AAA Patent Arbitration Rules, you will need to go back and modify the clause that you created by replacing “Commercial” with “Patent.” If you include mediation, remember that there are no Patent Mediation Rules.
Overall, the tool is easy to use and provides the user with a good, albeit generic, alternative dispute resolution clause tailored to the AAA Commercial Rules. It is easy to navigate around the tool as you can click on links and move backward or forward.
Overall, the ClauseBuilder is a useful tool. As mentioned above, I would like to see it improved by providing some options for the “Arbitration and Mediation” choice that allow the user to provide some staging to the mediation and that make it clear when the mediation step has been completed. I also think a valuable change would be to have “Patent” as one of the agreement choices, so that the AAA Patent Rules could be selected to govern current or anticipated future patent disputes. Notwithstanding that, the tool provides users with a generic ADR clause and a user-friendly means for further tailoring it to fit the precise situation. In doing this, the ClauseBuilder tool also educates users with the built-in selections to the myriad ways that the arbitration and mediation processes can be performed. These features are good for both the experienced and novice attorney.
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