Document type: Toolkit Practice area: Litigation — Arbitration Jurisdiction: United States (federal) Last reviewed: 5 September 2026

1. Model arbitration clause — commercial

SECTION __ — DISPUTE RESOLUTION

__.1 Scope. Any dispute, claim, or controversy arising out of,
relating to, or in connection with this Agreement or the
relationship between the Parties, including any question
regarding its existence, validity, breach, or termination
(a "Dispute"), shall be resolved as provided in this Section.

__.2 Arbitration. Any Dispute shall be finally resolved by
binding arbitration administered by [institution] under its
[rules] in effect at the time the demand is filed. The seat and
venue of the arbitration shall be [city, state]. The arbitration
shall be conducted by [one arbitrator / three arbitrators].

__.3 Delegation. The arbitrator, and not any federal, state, or
local court or agency, shall have exclusive authority to resolve
any dispute relating to the interpretation, applicability,
enforceability, scope, or formation of this Section __,
including any claim that all or any part of this Section is void
or voidable. The Parties acknowledge that this Section __.3 is a
severable agreement that may be enforced independently of the
remainder of this Section and of this Agreement, and that a
challenge to any other provision of this Agreement does not
affect it.

__.4 Governing statute; fallback. This Section is governed by
the Federal Arbitration Act, 9 U.S.C. §§ 1-16. If a court of
competent jurisdiction determines that the FAA does not apply to
this Agreement or to any Party, this Section shall be governed
by the [State] Arbitration Act and shall remain fully
enforceable thereunder.

__.5 Class waiver. All Disputes shall be arbitrated on an
individual basis. The arbitrator may not consolidate the claims
of more than one person and may not preside over any form of
representative, class, or collective proceeding. If this Section
__.5 is found unenforceable as to any claim or request for
relief, that claim or request shall be severed and heard in a
court of competent jurisdiction, and all remaining Disputes
shall be arbitrated individually.

__.6 Carve-out. Notwithstanding Section __.2, either Party may
seek temporary or preliminary injunctive relief in any court of
competent jurisdiction to prevent the actual or threatened
infringement, misappropriation, or unauthorized disclosure of
its Intellectual Property or Confidential Information. Such an
application does not waive this agreement to arbitrate, and the
underlying merits shall be resolved in arbitration.

__.7 Who may enforce. "Party" includes each named party and its
affiliates, subsidiaries, parents, successors, and permitted
assigns, and their respective officers, directors, employees,
and agents, each of whom may enforce this Section.

__.8 Award and judgment. The arbitrator shall issue a reasoned
award in writing. Judgment upon the award may be entered in any
court having jurisdiction thereof. The Parties consent to the
jurisdiction of [named court] for any proceeding to confirm,
vacate, modify, or correct the award.

__.9 Confidentiality. The existence, content, and result of any
arbitration shall be confidential, except as necessary to
enforce or challenge the award, to comply with law, or to make
disclosure to professional advisers, auditors, insurers, or
lenders under a duty of confidence.

__.10 Survival. This Section survives termination or expiration
of this Agreement.

Drafting notes.

__.3 is the operative paragraph. The final sentence — describing the delegation as a severable agreement and stating that challenges to other provisions do not affect it — is what makes Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) work for you. Without it, you are relying on incorporated institutional rules, and Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63 (2019) expressly reserved whether that suffices.

__.4's fallback is not optional in any agreement touching workers who move goods or people. After Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024), the employer's industry is not the test.

__.5's severance sentence is the important half. Without it, a court that invalidates the class waiver may send class claims to arbitration, which is almost never what the drafter wanted.

__.6 fails when it is drafted broadly. A carve-out for "any claim seeking injunctive relief" is an exit ramp for every plaintiff. Limit it to the relief and the subject matter, make it mutual, and say the merits still go to arbitration.

__.8's designated court responds to Badgerow v. Walters, 596 U.S. 1 (2022). Name a court that will actually have jurisdiction over a confirmation petition.

2. The agreement-hierarchy sentence

Include one in every addendum, statement of work, order form, amendment, settlement agreement, and side letter.

[SUBORDINATE — most common]
Dispute Resolution. Any dispute arising out of or relating to
this [Addendum/SOW/Order] shall be resolved as provided in
Section [__] (Dispute Resolution) of the Master Agreement dated
[date], which is incorporated herein by reference and shall
govern notwithstanding any other provision of this
[Addendum/SOW/Order].

[SUPERSEDES]
Dispute Resolution. The dispute resolution provisions of this
Agreement supersede and replace any dispute resolution provision
in any prior agreement between the Parties with respect to the
subject matter hereof, including Section [__] of the [prior
agreement] dated [date].

[SUPPLEMENTS — mixed]
Dispute Resolution. Section [__] of the Master Agreement dated
[date] governs any dispute arising under this
[Addendum/SOW/Order], except that disputes concerning [specified
subject] shall be resolved as provided in Section [__] hereof.
For the avoidance of doubt, the Parties intend that [specified
subject] disputes be litigated and all other disputes be
arbitrated.

Drafting notes.

This is the highest-value paragraph in the toolkit. Coinbase, Inc. v. Suski, 602 U.S. 143 (2024) puts the contract-hierarchy question in front of a court, ahead of any delegation clause. Every hierarchy dispute is a preventable dispute.

Litigation counsel drafting settlements are the most common offenders. A settlement that resolves a dispute under a contract with an arbitration clause, and then adds its own forum clause without addressing the original, creates exactly the Suski problem.

"For the avoidance of doubt" earns its keep in the mixed variant. A court reading a split provision wants to know what the parties intended, and saying it plainly is worth a sentence.

3. Motion to compel arbitration — outline and proposed order

                    MOTION TO COMPEL ARBITRATION
                   AND TO STAY THIS ACTION
                     (9 U.S.C. §§ 3, 4)

I.   INTRODUCTION
     [Two paragraphs. The agreement, the clause, the claims,
     the relief: compel and STAY.]

II.  FACTUAL BACKGROUND
     A. The parties' agreements
        [If more than one, describe each and its dispute
        resolution provision.]
     B. Formation
        [Cross-reference the declaration and exhibits.]
     C. The claims asserted

III. LEGAL STANDARD
     Section 2 makes written arbitration agreements valid,
     irrevocable, and enforceable. Section 4 requires an order
     compelling arbitration where the making of the agreement is
     not in issue. Section 3 requires a stay on the application
     of a party.

IV.  ARGUMENT
     A. The [X] Agreement governs Plaintiff's claims
        [FIRST if more than one agreement exists. Suski.]
     B. A valid agreement to arbitrate exists
        1. Formation
        2. [If online:] Plaintiff received reasonably
           conspicuous notice and unambiguously assented
     C. The Parties clearly and unmistakably delegated
        arbitrability to the arbitrator
        [Rent-A-Center; Henry Schein. Note that the Court must
        enforce the delegation regardless of its view of the
        merits.]
     D. In the alternative, Plaintiff's claims fall within the
        scope of the clause
     E. [If applicable] Defendant may enforce as [affiliate /
        agent / third-party beneficiary]
     F. Defendant has not waived arbitration
        [Address Morgan v. Sundance affirmatively. Timeline.]

V.   THE COURT SHOULD STAY, NOT DISMISS
     Section 3 provides that the court "shall on application of
     one of the parties stay the trial of the action." Smith v.
     Spizzirri holds a stay mandatory on request. Defendant
     requests a stay.

VI.  CONCLUSION

Proposed order:

Upon consideration of Defendant's Motion to Compel Arbitration
and to Stay This Action, and the record herein, it is ORDERED:

1. The Motion is GRANTED.
2. Plaintiff's claims are referred to arbitration before
   [institution] in accordance with Section [__] of the
   [Agreement].
3. This action is STAYED pending completion of the arbitration.
4. The Parties shall file a joint status report every [120] days
   and within [14] days of the issuance of any award.
5. The Clerk shall administratively close this action, which may
   be reopened on motion of any Party without prejudice to the
   stay.

Drafting notes.

Paragraph 3 of the order is the paragraph to fight for. A dismissal ends the case and, after Badgerow, may leave you without a federal forum for confirmation. A stay keeps the case alive.

Paragraph 5's administrative closure satisfies courts that want the case off the active docket without dismissing it. Offer it; it makes granting the stay easier.

Section IV.F should be affirmative. Waiver will be argued in the opposition; addressing it first, with a timeline, is more persuasive than answering it in reply.

4. Formation declaration — online terms

The exhibit list matters as much as the text.

DECLARATION OF [NAME] IN SUPPORT OF MOTION TO COMPEL

I, [Name], declare:

1. I am [title] at [Company]. I have held this position since
[date]. I make this declaration from personal knowledge and
from Company records maintained in the ordinary course of
business, which I am qualified to interpret by reason of my
role.

2. MY ROLE AND THE SYSTEMS I ADMINISTER
   [What the declarant does; which systems; why they can speak
   to the records.]

3. THE REGISTRATION FLOW
   3.1 To create an account, a user must complete the flow
       described below and depicted in Exhibit A.
   3.2 On [date range], the account creation screen displayed
       [describe: the checkbox, the text, the hyperlink, the
       font size, the position relative to the submit button].
   3.3 A user cannot complete registration without affirmatively
       [checking the box / clicking "I agree"].
   3.4 Exhibit A is a true and accurate rendering of the screen
       as it appeared on [date], generated from [source: the
       version-controlled front-end repository at commit
       [hash] / the design system archive].

4. THE TERMS IN EFFECT
   4.1 Exhibit B is the version of the Terms of Service in
       effect from [date] to [date], internal version [id].
   4.2 Section [__] of Exhibit B contains the arbitration
       agreement and, at Section [__], the delegation
       provision.
   4.3 [If amended:] Exhibit C is the version in effect from
       [date]. Exhibit D is the notice of amendment sent to
       users on [date]. Exhibit E is the record of Plaintiff's
       acceptance of the amended Terms on [date].

5. PLAINTIFF'S ACCEPTANCE
   5.1 Company logs each acceptance with the user identifier,
       timestamp, IP address, and the version identifier of the
       Terms displayed. These logs are created automatically at
       the time of the event and retained for [period].
   5.2 Exhibit F is the log record for Plaintiff's account,
       user id [___], showing acceptance on [date] at [time]
       [time zone] from IP [___] of Terms version [id].
   5.3 Exhibit G is the corresponding account record showing the
       email address and name Plaintiff provided.

6. AUTHENTICITY
   Exhibits A through G are true and correct copies of records
   made and kept in the ordinary course of Company's regularly
   conducted business activity, made at or near the time of the
   events they record by persons with knowledge, or generated
   automatically by systems configured to record such events.

I declare under penalty of perjury that the foregoing is true
and correct. Executed on [date] at [city, state].

Drafting notes.

Paragraph 5.2 is the declaration. Everything else supports it. A declaration that describes the system generally but cannot tie a record to this user on that date invites formation discovery and an evidentiary hearing.

Exhibit A must show the screen as it was. Producing today's interface for a 2021 acceptance is the single most common defect, and opposing counsel will find the archived version.

The declarant should be an engineer or product owner, not the general counsel. Courts want someone who can explain how the logging works.

Paragraph 6 sets up the business-records foundation for any evidentiary hearing.

5. Opposition outline — aimed correctly

I.    INTRODUCTION
      [Lead with the strongest court-decided question: the
      second agreement, formation, § 1, or the EFAA.]

II.   THE COURT, NOT AN ARBITRATOR, DECIDES THE THRESHOLD
      QUESTIONS PRESENTED HERE
      A. Which agreement governs is for the Court
         [Coinbase v. Suski. No delegation clause reaches it.]
      B. Whether the FAA applies is for the Court
         [New Prime; Saxon; Bissonnette; EFAA.]
      C. Whether an agreement was formed is for the Court

III.  NO ENFORCEABLE AGREEMENT WAS FORMED
      A. The notice was not reasonably conspicuous
      B. There was no unambiguous manifestation of assent
      C. Defendant cannot show what Plaintiff was shown
      [Attack the declaration's gaps specifically.]

IV.   THE DELEGATION PROVISION IS UNENFORCEABLE
      [CRITICAL: aim at the delegation provision itself.]
      A. The delegation provision, standing alone, is
         unconscionable because [fee allocation applied to the
         gateway question / it was presented in a manner that
         precluded assent to it specifically]
      B. Plaintiff challenges this provision specifically and
         not merely the arbitration agreement as a whole

V.    DEFENDANT WAIVED ARBITRATION
      [Timeline of litigation conduct. Morgan v. Sundance:
      no prejudice required.]

VI.   THE CLAIMS FALL OUTSIDE THE CLAUSE'S SCOPE
      [Only if arbitrability is not delegated.]

VII.  IN THE ALTERNATIVE, THE COURT SHOULD PERMIT LIMITED
      DISCOVERY ON FORMATION
      [Propose a specific, narrow scope.]

VIII. CONCLUSION

Drafting notes.

Part IV is where oppositions are won and lost. Under Rent-A-Center, a challenge to the arbitration agreement generally goes to the arbitrator. Only a challenge aimed at the delegation provision is for the court. Write the heading that way, write the argument that way, and say expressly in the text that the challenge is directed at that provision specifically.

Part II should come before the merits arguments. It establishes the court's authority to decide anything, which is the premise of everything after.

Part VII is a real request, not a fallback. Where the movant's declaration is thin, formation discovery is frequently granted and frequently changes the outcome.

6. Formation-evidence package — specification

Give this to engineering and legal jointly. Maintaining it converts a ten-week project into an afternoon.

FOR EACH VERSION OF THE TERMS:

1. IDENTIFIER
   Version id / hash; effective start date; effective end date.

2. TEXT
   The full text as published, in an immutable store.

3. INTERFACE
   Renderings of every screen where the terms were presented:
   registration, checkout, re-consent, in-app amendment notice.
   Source: front-end repo commit hash or design system export.
   Include mobile and desktop variants.

4. PRESENTATION FACTS
   Where the link appeared relative to the action button.
   Font size and color of the notice text.
   Whether a checkbox was required.
   The exact button label.

5. ACCEPTANCE LOGGING
   Schema: user id, timestamp (with time zone), IP, terms
   version id, surface (web/iOS/Android), and event type.
   Retention period and backup policy.
   Name and role of the system owner.

6. AMENDMENT NOTICE
   For each amendment: the notice text, the delivery channel,
   the send date, the recipient list or query, and the
   acceptance mechanism.

7. DECLARANT
   Named individual able to testify to items 3-6.
   Backup declarant.

REVIEW: at every terms change, and annually regardless.
OWNER: [name], with [engineering counterpart].

Drafting notes.

Item 3 is what companies do not have and cannot reconstruct. Front-end code changes constantly; a rendering from 2021 cannot be recreated from a 2026 build. Archive it at the time.

Item 7 matters because people leave. A named backup declarant prevents the situation where the only person who understood the logging system departed two years ago.

7. Annual clause audit worksheet

AGREEMENT TEMPLATE: ____________________  REVIEWED: ________
REVIEWER: ______________________________

                                              YES  NO  N/A
Delegation stated expressly?                  [ ]  [ ]  [ ]
Delegation described as severable?            [ ]  [ ]  [ ]
FAA fallback to a named state statute?        [ ]  [ ]  [ ]
Class waiver present and findable?            [ ]  [ ]  [ ]
Class waiver severance clause?                [ ]  [ ]  [ ]
Carve-outs mutual?                            [ ]  [ ]  [ ]
Carve-outs limited to relief + subject?       [ ]  [ ]  [ ]
Affiliates/agents named as enforcers?         [ ]  [ ]  [ ]
Scope language deliberate (broad/narrow)?     [ ]  [ ]  [ ]
Seat/venue named?                             [ ]  [ ]  [ ]
Confirmation court designated?                [ ]  [ ]  [ ]
Judgment-entry sentence present?              [ ]  [ ]  [ ]
Award form specified?                         [ ]  [ ]  [ ]
Survival clause covers this section?          [ ]  [ ]  [ ]
Confidentiality addressed?                    [ ]  [ ]  [ ]

CONSUMER / EMPLOYMENT TEMPLATES ONLY:
Drafter pays arbitrator fees?                 [ ]  [ ]  [ ]
Full statutory remedies preserved?            [ ]  [ ]  [ ]
Limitations period not shortened?             [ ]  [ ]  [ ]
Convenient venue (claimant's district)?       [ ]  [ ]  [ ]
Reasonable discovery provided?                [ ]  [ ]  [ ]
Meaningful opt-out, with a real window?       [ ]  [ ]  [ ]
EFAA acknowledged?                            [ ]  [ ]  [ ]
No gag on discussing underlying facts?        [ ]  [ ]  [ ]

ANCILLARY DOCUMENTS:
Hierarchy sentence in SOW template?           [ ]  [ ]  [ ]
Hierarchy sentence in amendment template?     [ ]  [ ]  [ ]
Hierarchy sentence in settlement template?    [ ]  [ ]  [ ]
Hierarchy sentence in order form?             [ ]  [ ]  [ ]

FORMATION EVIDENCE:
Package current for all live versions?        [ ]  [ ]  [ ]
Named declarant and backup identified?        [ ]  [ ]  [ ]

CHANGES REQUIRED: _______________________________________
OWNER: ______________________  DUE: _____________________

8. Quick reference — who decides what

Question Decided by Authority
Which of two agreements governs Court Coinbase v. Suski
Whether the FAA applies (§ 1 exemption) Court New Prime; Saxon; Bissonnette
Whether an agreement was formed Court Buckeye (reserving formation)
Whether the contract is void or unconscionable Arbitrator Prima Paint; Buckeye
Whether the delegation clause is unconscionable Court, if challenged specifically Rent-A-Center
Whether arbitrability was delegated Court First Options
Arbitrability, where delegated Arbitrator, always Henry Schein
Timeliness, notice, conditions precedent Arbitrator Howsam
Waiver by litigation conduct Court, no prejudice required Morgan v. Sundance
Whether class arbitration is available Court, absent clear delegation Stolt-Nielsen; Lamps Plus
Stay or dismissal Stay, mandatory on request Spizzirri

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This toolkit is general information, not legal advice, and does not create an attorney-client relationship. Templates require adaptation by counsel to the jurisdiction, the parties, and the governing law.