Arbitration agreements, whether they are separate or part of a larger agreement, are contracts – an enforceable set of promises between parties. Like any other contract, arbitration agreements are subject to the same defenses that may be used to invalidate a purported contract. Such defenses may include:
- Mistake (Mutual or Unilateral);
- Duress or Undue Influence;
- Lack of Capacity;
- Misrepresentation or Fraud;
- Impossibility or Impracticability (yes, there is a difference);
- Material Breach (after formation);
- No Consideration; and
- Several Others.
If you think you may have agreed to arbitrate a dispute, don’t try anything special or unique to attack the arbitration agreement or provision. Stick with the tried and true contractual defenses.
Better yet . . . stick with arbitration, it may be better for you.