Chapter 12 - § 12.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 12.1 • INTRODUCTION

Arbitration agreements may be a part of a contract between parties defining a transaction or relationship they have entered into. If so, the arbitration clause defines the method for resolving disputes with respect to that relationship or transaction (or some portion thereof) in case a dispute should arise. However, if there is no contractual clause, after a dispute between two or more parties arises, those parties may enter into an agreement to have that specific dispute resolved by arbitration.

An arbitration proceeding is commenced by the service/filing of what is commonly referred to as a demand for arbitration. Once any arbitrability issues that need to be determined by a court have been determined and the controversy is submitted to arbitration, it remains before the arbitrator until the parties mutually agree to withdraw it.¹ Very generally, once it is established that the dispute is subject to an arbitration, the court no longer has subject matter jurisdiction, as the dispute must be submitted to arbitration.² In general, that lack of jurisdiction continues until the award is entered, subject to separate statutory and common law jurisdiction, e.g., to enforce subpoenas.

Generally, the party asserting a claim has the burden of initiating arbitration.³ For example, if the plaintiff commences a civil action, the defendant may move to stay the civil action on the ground that the dispute is subject to arbitration. However, the defendant need not commence the arbitration in order to prevail on the motion to stay the litigation. If the defendant prevails, he or she still need not commence the arbitration, and instead can wait until, and unless, the plaintiff commences the arbitration.⁴

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Notes:

^[1] Cabus v. Dairyland Ins. Co., 656 P.2d 54, 56 (Colo. App. 1982).

^[2] Encore Prods., Inc. v. Promise Keepers, 53 F. Supp. 2d 1101, 1111 (D. Colo...