The rapid rise of arbitration as a preferred method for dispute resolution especially within corporate settings, is hardly ignorable. Mandatory arbitration provisions are increasingly becoming a common sight in a variety of commercial contracts, particularly in consumer agreements. As indicated in a recent study in 2018, 81 out of America’s 100 largest companies incorporate binding arbitration agreements as a standard provision in their consumer contracts.
However, the prevalence of arbitration in business-to-business agreements has not yet matched this pace. The distinctive complexity of these types of agreements makes a strong case for the use of arbitration. Nonetheless, the increasing ubiquity of arbitration in these contexts raises a fundamental question concerning the enforceability of such contracts, specifically, when is a waiver of the right to arbitration indeed a waiver?
The answer is not as straightforward as it might seem. Various factors come into play, including not only the evident express waiver by agreement but also implied waivers through behavior inconsistent with the right to arbitrate. The courts’ interpretation and enforcement of these waivers hinges on the particulars of each case, adding another layer of complexity to an already intricate subject. This very issue underscores the critical need for legal professionals to not just understand, but navigate deftly, the landscapes that surround corporate arbitration.
As such, close observation of arbitration-related legal developments is highly imperative for corporate attorneys and professionals. Through vigilant monitoring, attorneys will be better equipped to advise their clients on the prudent course of action and, ultimately, craft contracts that protect intercorporate interests. The evolving narrative on the waiver of the right to arbitrate is a significant part of this ongoing dialog.