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August 12, 2014 Practice Points

Battle of Forms and Arbitral Jurisdiction

By Mitchell L. Marinello

Nebraska Machinery Co. vs. Cargotec Solutions, LLC (8th Cir., Aug. 7, 2014) combines a battle of the forms-contract dispute with the question of arbitral jurisdiction. It provides an interesting comparison to the discussion of arbitral jurisdiction in the Eckert/Wordell case, also decided by the Eighth Circuit, described in the July 29 posting on this site.

In Eckert/Wordell, a contract contained an arbitration clause that incorporated the AAA Commercial Rules. A party who had not signed the contract brought an arbitration claim against a party who had signed the contract. The party asserted that it had no obligation to arbitrate with a non-signatory, but lost its bid for a declaratory judgment to that effect. The Eighth Circuit reasoned that by signing a contract that incorporated the AAA Rules, the party had unmistakably agreed that the arbitrator, not the court, was to decide questions of arbitral jurisdiction. Thus, the arbitration brought by the non-signatory was allowed to proceed with the arbitrator to decide if the non-signatory had the right to bring its claims in an arbitral setting.

Keywords: litigation, alternative dispute resolution, ADR, arbitral jurisdiction, battle of the forms, trial, AAA Commercial Rules

Mitchell L. Marinello is with Novack and Macey LLP in Chicago, Illinois.

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