06
Aug
2018

Blurred Lines: Rethinking the Issue of Consent by Non-Signatories

The New York Law Journal

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PUBLISHED ON: August 6, 2018

In recent years, U.S. courts have increasingly tended not only to enforce mandatory arbitration agreements, but also to compel arbitration even in instances where one of the parties did not sign an agreement to arbitrate. The title of Robin Thicke’s 2013 megahit —“Blurred Lines”—provides an accurate description of what constitutes “consent” by a non-signatory in arbitration.

In recent years, U.S. courts have increasingly tended not only to enforce mandatory arbitration agreements, but also to compel arbitration even in instances where one of the parties did not sign an agreement to arbitrate.

Section 4 the Federal Arbitration Act (FAA) expressly gives the judiciary the power to compel parties “to proceed to arbitration in accordance with the terms of the arbitration agreement.” Although consent is understood to be the sine qua non of arbitration, in the interests of judicial efficiency, courts have also compelled arbitration in situations not expressly within “the terms of the arbitration agreement.” Sometimes non-signatories seek to take advantage of an agreement to arbitrate, either offensively (to commence an arbitration against a signatory) or defensively (to trump a court proceeding commenced by a signatory). Alternatively, a signatory to an arbitration agreement may attempt to bring a non-signatory within the agreement’s reach, again either offensively or defensively.

Read more:  Rethinking the Issue of Consent by Non-Signatories

 


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