Waivers of consequential damages and limitations of liability are standard terms proposed by at least one Party in every contract. Many parties fail to give much thought to these clauses. Then, when major claims arise and direct damages are inadequate to compensate the aggrieved party, the Party looks for ways to void the waiver and/or limitation of liability. The answer is usually a claim of bad faith and fraud. As a result, bad faith and fraud counts have become the norm in arbitration and litigation. A panel composed of experienced in-house counsel, private practitioner, and arbitrators will discuss contract drafting strategies and how to present and defend a claim seeking to void a clause based on bad faith and fraud.
Upon completion of this session, participants will be able to:
- Develop a better understanding of when to include a waiver of consequential damages and/or limitation of liability in their contracts. Such clauses cut both ways, and the parties must understand the consequences of a bad decision.
- See a waiver and/or limitation of damages clause that has been included in the contract, and a party wants to void the clause because the amount of the damages incurred are catastrophic.
- Understand how Arbitrators might view such claims and what a Party must do to prevail from experienced arbitrators.