2006/Vol. 5 No.1 - Hamline Law - Hamline University

2006] ARBITRATION: THE BASICS 15
duties cannot exist in a vacuum, but must have a place within a
legal system. 57
While contracts generally do not have to be in writing to be
enforceable, arbitration clauses must be in writing to be valid. 58 Because
both parties give up their right to go to court, the Federal Arbitration Act
requires that an arbitration clause be in writing. 59 An agreement to
arbitrate must be “openly and freely” entered into by both parties. 60
Parties will not be compelled to arbitrate if they have not voluntarily
contracted to use this mechanism to resolve their disputes. 61 Once the
court has determined that the arbitration agreement is valid and that the
parties contracted for arbitration of their dispute, they will be held to it. 62
57. Angela L. Kimbrough, Arbitration: Demise of the Right to Trial by Jury, in
1 AM. TRIAL LAW. ASS’N ANNUAL CONVENTION REFERENCE MATERIALS 397
(2000) (quoting Lord McNair, The General Principals of Law Recognized by
Civilized Nations, 33 BRIT. Y.B. INT’L L. 1, 7 (1957)).
58. 9 U.S.C. § 2 (2000) (providing that “[a] written provision in any maritime
transaction or a contract evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such contract or transaction, . . . or
an agreement in writing to submit to arbitration an existing controversy arising out
of such a contract, transaction, or refusal, shall be valid, irrevocable, and
enforceable”) (emphasis added).
59. Id.; see Kilmer v. Flocar, Inc., 212 F.R.D. 66, 72 (N.D.N.Y. 2002) (citing In
re Arbitration Between Chung & President Enters. Corp., 943 F.2d 225, 229 (2d
Cir. 1991) (noting that, “[g]enerally, the FAA governs all questions before a federal
court regarding the validity and enforceability of arbitration agreements if: (1) the
parties have entered into a written arbitration agreement”)). The Kilmer court held
that, because agreement was not in writing, it did not meet requirements of the
FAA. Id.
60. Benyon v. Garden Grove Med. Group, 161 Cal. Rptr. 146, 149 (Cal. Ct.
App. 1980) (“[I]n order to be enforceable an agreement to arbitrate must have been
openly and fairly entered into by the parties.”); see also United Steel Workers of
Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960) (“[A]rbitration is
a matter of contract and a party cannot be required to submit to arbitration any
dispute which he has not agreed so to submit.”).
61. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,
626 (1985); Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 199 (1991) (quoting
Hilton-Davis Chem. Co. v. Local 342, Int’l Chem. Workers Union, 185 N.L.R.B.
241, 242 (1970) (“[T]he commitment to arbitrate is a ‘voluntary surrender of the
right of final decision which Congress . . . reserved to [the] parties.’”)).
62. Hahnemann Univ. v. Dist. 1199C, Nat. Union of Hosp. & Health Care
Employees, 765 F.2d 38, 41 (3d Cir. 1985) (quoting Warrior & Gulf Navigation
Co., 363 U.S. at 582-83) (“A court should order the reluctant party to submit the
dispute to arbitration ‘unless it may be said with positive assurance that an
arbitration clause is not susceptible of an interpretation that covers the asserted