November 30, 2018 Feature

Scope and Enforceability of Arbitration Clauses and Requirements

By Aaron G. Weishaar, Christopher M. Indelicato, and Jennifer Leuschner

Arbitration continues to be a popular vehicle of dispute resolution. However, although the law, as well as public policy, greatly favors arbitration, competing interests become more readily apparent when one of the parties to a contract seeks to invoke an arbitration provision.1 When some parties’ claims or issues fall outside of arbitration provisions, piecemeal litigation, including a stay of certain claims or issues pending arbitration, can result in inconsistent outcomes.2 Those competing interests—combined with arbitration having its own rules and procedures as opposed to the more familiar rules of civil procedure, a party’s lack of appeal rights, and possible arbitrator disregard of legal defenses—often leave some, including sureties, looking upon arbitration provisions with great skepticism and suspicion.

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