Chapter 7 - § 7.2 • IS THERE AN AGREEMENT TO ARBITRATE?

• Jurisdiction: Colorado

§ 7.2 • IS THERE AN AGREEMENT TO ARBITRATE?

As discussed in earlier chapters, the federal and state arbitration acts provide that agreements to arbitrate are valid and enforceable, except on such grounds as exist in law or in equity for the revocation of any contract. The subsections hereinafter discuss some of those grounds.

Both the federal and state arbitration statutes apply to "contracts" or "agreements" to arbitrate.

FAA § 2: "[A] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy. . . ."

CRUAA § 203: "[T]his part 2 shall govern an agreement to arbitrate. . . ."

CRUAA § 206(1): "An agreement . . . to submit to arbitration . . . is valid, enforceable, and irrevocable except. . . ."

Absent clear evidence of the parties' intent to the contrary, an arbitration provision in a contract survives the termination of the contract.¹⁴

[W]hen a dispute arises under an expired contract that contained a broad arbitration provision, courts must presume that the parties intended to arbitrate their dispute. This is so even if the facts of the dispute occurred after the contract expired.¹⁵

Similarly, the enforcement provisions of the statutes refer to enforcement of agreements. Hence, the first issue is whether there is an "agreement" to arbitrate.

The requisites for an "agreement" to arbitrate are covered in Chapter 5, "Agreements to Arbitrate." If those requisites are not met, the first requirement is not met. Whether there is an agreement has two elements: (1) Are the specific requirements of the federal or state arbitration statute for the formation of an agreement to arbitrate met? (2) Are the requirements for formation of a contract generally met? See § 5.2.6 (definition of arbitration governed by federal common law). See § 5.10, "Death of a Party: Survival upon Termination of Contract."

In order to meet the "agreement" requirement for the arbitration statute to apply, the agreement must be in writing. (The CRUAA requires that there be a record of the agreement, which includes electronic means as well as writings.) Beyond that requirement, the statutes state nothing as to the requirements for an agreement to arbitrate. However, by implication, the statutes may prohibit restrictions on the validity of arbitration agreements.

§ 7.2.1—Law Determining Whether There Is An Agreement To Arbitrate

The law of contracts, generally of the state whose law applies to the formation...