Arbitrability
Does the Court or Arbitrator Determine Arbitrability? Once Again . . .
September 15th, 2020
Calling this a “mind-bending” question that is “the queen of all threshold issues,” the Third Circuit Court of Appeal has held that this question is for the courts to decide, “unless the parties have clearly and unmistakably referred those…
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Estoppel and Agency Theories for Non-Signatories to Compel Arbitration
June 16th, 2017
A twisted set of underlying facts did not detract from the core of an appellate court decision: even if one party to a contract with an arbitration clause was not part of a lawsuit, agents and closely-related persons/entities could compel arbitration…
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Undocumented Oral Agreement Came Within Scope of Written Arbitration Clause
November 16th, 2016
A hauling company submitted bids for removal of three different types of construction debris, and the parties agreed on and signed a contract covering two of those categories. Later, by oral agreement the third category initially bid on was added at…
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Divided Court Strikes Arbitration Clause based on Unconscionable Remedies
July 8th, 2016
Concluding that a dispute clause left homeowners with no effective remedy, a divided South Carolina Supreme Court has stricken an arbitration clause in a home construction contract. The dissent, citing recent US Supreme Court decisions, argued that t…
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Legality of contract with arbitration clause is to be determined by court and not by arbitrator
February 23rd, 2016
One party argued throughout an arbitration proceeding that the agreement containing the arbitration clause was illegal and void as against public policy. The other side had obtained an order compelling arbitration, and then prevailed in front of the…
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Categories: Arbitration
Reference to AAA Construction Industry Rules means that parties agreed to have arbitrator determine arbitrability
January 28th, 2016
A Florida Court of Appeal has concluded that an arbitration clause incorporating the AAA Construction Industry Arbitration Rules means that the parties intended to submit issues of arbitrability to the arbitrator and not to the courts. The parties ha…
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Alleged pre-employment misrepresentations were within scope of employment agreement arbitration clause
December 31st, 2015
The prospective employee in California was promised certain compensation and commissions if he joined the company in Illinois. When he joined, he signed an employment agreement calling for arbitration of disputes in New York. It was not a good marria…
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Categories: Arbitration
An issue outside the scope of the arbitration clause? Handle with care!
December 21st, 2015
One of the limited bases to object to an arbitration award, under the Federal Arbitration Act or any of the state arbitration laws, is that the arbitrator ruled on an issue outside the scope of the arbitration agreement. Another concept, supported by…
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Arbitrability of Class Action Claims – Turn-About is Fair Play
November 18th, 2015
The normal pattern is for employees or consumers to challenge in court the scope of arbitration, and whether it is for the arbitrator or the court to make that determination. A California federal court judge has issued a decision against Guess?, Inc.…
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Categories: Arbitration
Delegation of Arbitrability to the Arbitrator – May Not Be Enforceable
May 6th, 2015
Some arbitration clauses include a “delegation provision” where the parties grant to the arbitrator – instead of a court – the authority to determine validity and enforceability of the arbitration clause itself. A recent decision by the West…
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