Section 15 Duty to Arbitrate

• Library: Consumer Law and Practice 2010

Who can be compelled to arbitrate a dispute? Arbitration is ultimately a matter of agreement between the parties. Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 351 (Mo. banc 2006). A party can be compelled to arbitration only when it has agreed to do so. Hitcom Corp. v. Flex Fin. Corp., 4 S.W.3d 618, 620 (Mo. App. E.D. 1999); AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 648 (1986). The mere fact that parties had been discussing arbitration does not mean that they actually agreed to arbitrate. Arrowhead Contracting, Inc. v. M.H. Washington, LLC, 243 S.W.3d 532, 535 (Mo. App. W.D. 2008). Before a court may grant a party's motion to compel arbitration, it must decide whether the agreement containing the arbitration provision is valid and legally binding. Hitcom, 4 S.W.3d 618.

Many of the rights and duties of parties regarding arbitrations can be determined only by reference to both federal and state law. Missouri's statutory act is called the MUAA (Missouri Uniform Arbitration Act), § 435.350 et seq., RSMo 2000. The MUAA was passed by the Missouri General Assembly, effective August 13, 1980. The MUAA follows closely the language of the UAA (Uniform Arbitration Act) first proposed by the National Conference of Commissioners on Uniform State Laws in 1955. The UAA is available at:

www.law.upenn.edu/bll/archives/ulc/uarba/arbitrat1213.htm

See State ex rel. Tri-City Constr. Co. v. Marsh, 668 S.W.2d 148, 150 (Mo. App. W.D. 1984) (court first considered several issues under the MUAA). The MUAA applies to all arbitration agreements entered into after the statute's effective date of August 13, 1980. Section 435.445, RSMo 2000; Hefele v. Catanzaro, 727 S.W.2d 475, 476 (Mo. App. E.D. 1987).

The federal act is the FAA (Federal Arbitration Act), 9 U.S.C. § 1 et seq. The FAA applies only when a contract affects "interstate commerce," which is construed broadly. Woermann Constr. Co. v. Sw. Bell Tel. Co., 846 S.W.2d 790, 792 (Mo. App. E.D. 1993). When the arbitration contract does not specify whether the FAA or the MUAA applies, and when the contract does affect interstate commerce, the FAA would preempt the MUAA to the extent that applying the MUAA would deny either party any substantive rights granted by the FAA. Reis v. Peabody Coal Co., 935 S.W.2d 625, 630 (Mo. App. E.D. 1996). Missouri courts are not bound by the procedural provisions of the FAA, as long as Missouri's procedures do not defeat substantive rights granted by Congress. McClellan v. Barrath...