Chapter 7 - § 7.10 • WAIVER OF OBJECTIONS TO ARBITRATION

• Jurisdiction: Colorado

§ 7.10 • WAIVER OF OBJECTIONS TO ARBITRATION

CRUAA

By failing to object to an arbitrator's actions, any objection thereto may be waived. In Osborn v. Packard,²²⁹ the appellee urged that the arbitrator lacked jurisdiction to enter rulings clarifying his original rulings. The court found a waiver of the objection by failing to object to the arbitrator's authority to issue such clarifications until the appeal. Because there might be questions as to applying waiver to subject matter jurisdiction, it might be desirable to refer to the holding as implied consent or amendment to the arbitration agreement.

A Connecticut appellate court held that a party may not simply not participate in the arbitration and then raise an arbitrability defense when the claimant seeks to confirm the award; rather, the respondent must preserve the defense by raising it in the arbitration (or, probably, by asserting it in a judicial action).²³⁰

Typically, it is the court and not the arbitrator who determines whether a party has waived the arbitration provisions,²³¹ at least if the parties have not agreed otherwise. In part, this is because the issue normally comes up on a motion to compel arbitration and stay a civil action. Generally, under the rules discussed above as to whether there is a valid arbitration agreement, the issue of waiver is subsumed and is an issue for the court. However, there does not appear to be any prohibition to an arbitrator's determining the issue, although it might be determined de novo by the court "on appeal."

The Colorado Court of Appeals stated that under C.R.S. § 13-22-206, the court, not the arbitrator, decides whether an agreement to arbitrate exists, as the parties did not agree by plain and unambiguous language that the arbitrator should decide.²³² The respondents/defendants requested of the arbitrator that a court determine whether there was a valid arbitration agreement. The defendants also requested the arbitrator to make that determination, which he did, finding a valid agreement. "Defendants never sought independent judicial relief pursuant to C.R.C.P. 57 [declaratory judgment] on the question of whether the parties had a valid agreement to arbitrate."²³³ Instead, the arbitration proceeded, resulting in an award in favor of the plaintiff.

The plaintiff sought to confirm the award, and the defendants moved to vacate the award on the ground that only the court, and not the arbitrator, could determine whether the contract with the arbitration clause was valid. The court of appeals held that the...