Arbitration is meant to be an alternate to litigation. Yet arbitration is itself the subject of much litigation over who must arbitrate, what must be arbitrated, whether and how the arbitration should proceed, and the deference courts must show to arbitration awards. This blog is intended to be a resource for litigators, in-house counsel, arbitrators and anyone else who wants to stay on top of the many thorny issues that arise under the Federal Arbitration Act. Our Bloggers →

Latest Validity of Arbitration Agreement Posts
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State Courts Disagree About Incorporating Arbitration Agreements By Reference (Post #200!)

By Liz Kramer | July 22 2015

Validity of Arbitration Agreement One way to challenge the very existence of an agreement to arbitrate is to say that the parties' contract said nothing about arbitration and did not validly incorporate any other document calling for arbitration.  Oklahoma and Alabama have recently come out at opposite ends of the spectrum in terms of what kind of...

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Should You Cut The Delegation Clause From Your Arbitration Agreement?

By Liz Kramer | July 15 2015

Validity of Arbitration Agreement A recent report showed that less than half of arbitration agreements in the consumer financial arena include delegation clauses in their arbitration agreements.  Two recent decisions from state high courts suggest that is a wise decision because courts do not like to enforce delegation clauses. (Reminder: a...

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Arbitration Fireworks: Three Federal Circuits Refuse To Compel Arbitration

By Liz Kramer | July 2 2015

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate Three federal appellate courts recently affirmed lower courts' refusal to compel arbitration.  These cases show that the federal policy favoring arbitration is not absolute – the parties must have agreed to arbitrate the claims at issue and the defendant cannot have waived its right to arbitrate by engaging in...

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Hawaii Finds Arbitration Agreement With “Severe Limitations on Discovery” is Unconscionable

By Liz Kramer | June 19 2015

Validity of Arbitration Agreement Hawaii issued a bold arbitration decision this month. It applied its state contract law to conclude that the parties did not form a clear arbitration agreement, but even if they did, it was unconscionable because it prohibited both discovery and punitive damages.  Narayan v. The Ritz-Carlton Dev. Co., Inc., __...

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Missouri Declares It Unconscionable For NFL Commissioner to Arbitrate Employment Dispute

By Liz Kramer | June 5 2015

Validity of Arbitration Agreement The Supreme Court of Missouri has issued two significant arbitration decisions in recent weeks, showing its willingness to sever any aspects of an arbitration agreement that it finds unconscionable (while enforcing the overall obligation to arbitrate). First, in a contentious decision, the Supreme Court of...

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Eighth Circuit Shows How Difficult It Is To Prove Arbitration Agreement Unconscionable Due To Cost

By Liz Kramer | March 25 2015

Class Arbitration, Validity of Arbitration Agreement Almost two years ago in American Express Co. v. Italian Colors, SCOTUS significantly narrowed, but did not overrule, the "effective vindication" doctrine, which allows plaintiffs to invalidate an arbitration agreement if it precludes them from effectively vindicating their federal statutory rights.  A decision today...

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SCOTUS Will Hear Arbitration Case in October Term

By Liz Kramer | March 23 2015

Class Arbitration, Litigation vs. Arbitration, Validity of Arbitration Agreement Just as I was beginning to worry that arbitration had fallen out of favor at the nation's highest court... today the Supreme Court announced that it will hear the case of DIRECTV, Inc. v. Imburgia during its October Term, an appeal from a California Court of Appeals.  In DIRECTV, a case pitting Kirkland &...

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SCOTUS Allows California to Interpret Federal Arbitration Act As Excluding Private Attorney General Claims

By Liz Kramer | January 20 2015

Class Arbitration, Validity of Arbitration Agreement Today, the U.S. Supreme Court denied the petition for certiorari in the Iskanian case from the California Supreme Court.  In doing so, SCOTUS allowed one of the most interesting Federal Arbitration Act interpretations in recent years to stand.  As you may recall, the decision held that the Federal Arbitration Act...

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Sirius XM Faces Class Action Because Arbitration Agreement Provided Late Is Invalid

By Liz Kramer | November 13 2014

Class Arbitration, Validity of Arbitration Agreement A few months ago, the Ninth Circuit found that the arbitration agreement in Barnes & Noble's website was not enforceable.  This week, the Ninth Circuit found that the arbitration agreement Sirius XM Radio relied upon was not enforceable because the user did not know he had any agreement with Sirius XM, let...

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Hawaii Finds Unilateral Arbitrator-Selection Provision Fundamentally Unfair

By Liz Kramer | November 5 2014

Arbitration Rules/Procedures, Validity of Arbitration Agreement The Supreme Court of Hawai’i concluded last week that it is fundamentally unfair to allow one party to an arbitration agreement to unilaterally select the arbitral forum. Nishimura v. Gentry Homes, Ltd., __ P.3d__, 2014 WL 5503393 (Haw. Oct. 31, 2014).  The parties can either jointly agree to a forum, or the court...

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