In recent months, three federal circuit courts have confronted this question: can a defendant compel arbitration even in the absence of a signed written agreement containing an arbitration clause? The answers were yes, no, and maybe, but the analysis in all three turns on whether the party resisting arbitration should reasonably have known that an arbitration clause was part of the deal.
If I had to choose a favorite subset of arbitration cases, it might be the ones that come after SCOTUS remands to a state supreme court. How does a state high court full of accomplished professionals, the cream of the legal crop in their state, respond after the U.S. Supreme Court has found their previous arbitration opinion was flawed….
Whenever people ask me why I choose arbitration law to write and talk about, one of the reasons I give is that the law is in flux, creating a demand for information and analysis. Despite the fact that the Federal Arbitration Act has been around for over 90 years, there are constantly new developments in its interpretation.