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Lack of Signed Contract to Arbitrate

Friday, July 25, 2025 2:42 PM | Anonymous

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An arbitral institution invites an arbitrator to serve in a commercial case. The demand says that Claimant can’t locate a signed contract, but that its customers usually enter into a standard form contract with them, with the same general terms, including an arbitration clause. A sample of such a clause is attached as an exhibit to the demand.

Should the arbitrator accept the case, when the Claimant has not pled a signed contract, let alone a signed arbitration agreement, and has only pled as indicated above?

What are your thoughts?

Comments

  • Friday, July 25, 2025 3:04 PM | Jerry Bramwell
    How would this hypothetical case even make it past the initial screening process? Why would the respondent—assuming it did not want to be in arbitration—not file a dec. action seeking to pause the arbitration on the grounds that there was no agreement to arbitrate?
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    • Friday, July 25, 2025 3:11 PM | DEN
      Saying there is “no signed agreement” is not the same as saying there is “no agreement.”Under FAA Section 2 it has to be a written agreement, but the Act does not require a signed agreement.
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  • Friday, July 25, 2025 3:09 PM | Daniel Feinstein
    Accept the appointment. If the Respondent doesn't make an appearance, as part of the Claimant's burden in any motion for default judgment, they need to prove the existence of the contract. Depending on the facts, parol evidence may or may not be sufficient. If the Respondent does appear, substantive arbitrability can be addressed as a preliminary issue.
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  • Friday, July 25, 2025 3:13 PM | Robbie MacPherson
    In the first instance it is up to the Respondent to raise the issue, either by bringing an action to stay the arbitration under the FAA or the arbitration laws of the jurisdiction, or by asking the arbitrator to rule on the issue if that question is within the arbitrators jurisdiction. Or the Respondent could simply agree to arbitrate the dispute. In summary, it is not a question for the arbitrator unless and until the arbitrator is asked to decide the issue.
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  • Friday, July 25, 2025 3:16 PM | Brian Oblow
    I would accept the appointment and leave it to the Respondent to challenge the arbitration.
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  • Friday, July 25, 2025 3:17 PM | Steve Pratt-Yungblut
    While a signature provides the clearest evidence of mutual assent to arbitrate, courts may still uphold an arbitration agreement if there's clear evidence that the parties intended to be bound by the agreement, even without a signature.
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  • Friday, July 25, 2025 3:18 PM | Ken Malovos
    Yes, the arbitrator takes the case. It it up to the Respondent to raise any issue as to a lack of signed contract. Maybe the Respondent knows there was a signed contract and does not dispute the lack of a signed contract with the Demand. Maybe the Respondent wants to maintain the relationship with the Claimant and does not want to dispute the lack of a signed contract. Maybe the Respondent does not appear in the arbitration to raise any question. The point is that the arbitrator is not the attorney for one side or the other.
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  • Friday, July 25, 2025 3:19 PM | Robert Prather
    No. It should have been rejected in screening by organization.
    Speculative as to terms, that agreement exists, basis for administration. No writing. Party who wants to compel arbitration should be in court seeking an order, if the party can prove a contract and an arbitration clause even exist.
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  • Friday, July 25, 2025 3:21 PM | Marc Labgold
    I would ask the parties to submit a submission agreement. If they are unwilling to do so, there is likely a lack of agreement to arbitrate.
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  • Friday, July 25, 2025 3:27 PM | Jim Burgess
    Yes, the arbitrator should take the case. The Claimant has alleged a written contract and alleges that it likely was signed but cannot find the signature. The Respondent may go to court to have the court determine whether there is an arbitration agreement, or it may clearly and unmistakably submit to the arbitration, or it may submit the issue to the arbitrator to decide. Whether an agreement to arbitrate exists ordinarily is an issue for the court, but it is not up to the arbitrator to make the parties go to court to resolve an issue that is not in dispute yet.
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  • Friday, July 25, 2025 4:03 PM | Rafael T. Boza
    I see several obstacles to moving forward. Foremost among them is the absence of a written agreement. Section 2 of the Federal Arbitration Act (FAA) expressly requires a “written provision.” Similarly, the UNCITRAL Model Law, and by extension, the legal regimes of all jurisdictions that have adopted it, mandates a written arbitration agreement. (While Option II of the Model Law dispenses with the writing requirement, it has been adopted far less frequently.)
    All major arbitration laws uphold this principle, requiring a written agreement as a prerequisite to arbitration. The same holds true for institutional rules. For instance, although Rule 1(a) of the AAA Commercial Arbitration Rules does not explicitly use the word “writing,” it implies the necessity through language such as “provided” and “without specifying,” and through its requirement that any amendment to the parties’ agreement must be made in writing.
    Moreover, the AAA requires parties to attach their arbitration agreement when submitting a demand for arbitration. In this case, the claimant has submitted only an unsigned agreement, which does not meet the standard of a written contract. Other arbitral institutions follow similar practices: while they may not explicitly require a writing, they expect the parties to submit their arbitration agreement—and an unsigned copy is generally inadequate.

    In sum, without a valid written agreement to arbitrate, it will be difficult to proceed. This may be a situation in which the arbitrator accepts the appointment solely to decline jurisdiction due to the lack of a valid arbitration agreement.
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  • Friday, July 25, 2025 4:09 PM | Evan SPELFOGEL
    No way…no contract = no basis for arbitration
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  • Friday, July 25, 2025 4:21 PM | Judge Victor Bianchini
    I do almost all of my arbitrations through AAA. I believe that AAA obtains an agreement of the parties who consent through AAA. There are a number of documents required by AAA for agreeing to the arbitration, including, but not limited to disclosures. I believe this satisfies any contractual signing requirements.
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  • Friday, July 25, 2025 4:24 PM | Bill Hussmann
    I would enter an order conditionally accepting the appointment, subject to the Claimant serving the Demand upon the Respondent and the Respondent filing a consent to arbitrate within a reasonably short period of time.
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  • Friday, July 25, 2025 4:25 PM | Michele Floyd
    Accept the appointment and leave it to the Respondent to challenge the enforceability of the agreement if the Respondent does not submit. No mutual assent, no agreement to be sure, but there may be evidence of assent other than a signed agreement, such as prior dealings, other knowledge, etc.
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    • Saturday, July 26, 2025 4:42 PM | Jason Brown
      I agree with conditionally accepting the appointment pending the position of the Respondent and/or further evidence of an arbitration agreement.
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  • Friday, July 25, 2025 4:27 PM | Robert A Shipley
    Usually does not mean in the instance described that there was a signed agreement vesting venue in the arbital institution. In the absence of consent to arbitrate in the chosen forum or another exhibit which indicates the standard form contract was executed, then in my view, the Demand for Arbitration should not be accepted.
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  • Friday, July 25, 2025 4:57 PM | Michael Lampert
    There is a difference between there being a written agreement and proving there is one. The actual agreement is the best evidence. But if there is a good reason for claimant not to be able to produce the agreement and collateral evidence of one (e.g. standard practice) I don't think either the institution or the arbitrator alone should decline to handle the matter without hearing from respondent. There are shreds of several documents a then client of mine lost on 9/11 in this video from Caroll Gardens, Brooklyn: https://youtu.be/zMBcazHj2H0?feature=shared (Client name is visible on some snippets). Is its inability to produce such a document per se fatal?
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  • Friday, July 25, 2025 5:00 PM | David Slaughter
    The existence (or not) of an agreement arbitrate is a linchpin of an arbitrator jurisdiction. A signature is not an absolute requirement but a written agreement is. I would give great deference to a respondent’s challenge to the allegation of jurisdiction in such a case.
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    • Friday, July 25, 2025 5:30 PM | Michael S. Jordan
      I would take the case and rule on any motion raised by respondent. The parties have the power to vest the institution and the arbitrator with jurisdiction by their words or deeds. If issues are raised, the arbitrator may determine there is or is not jurisdiction after the threshold issue is presented and resolved.
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  • Friday, July 25, 2025 5:23 PM | Thomas
    Why would the arbitral institution accept the case?
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  • Friday, July 25, 2025 5:24 PM | Julia E Sullivan
    I would want to hear from the respondent. Maybe the respondent is willing to arbitrate.
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  • Friday, July 25, 2025 6:20 PM | Carlos Loumiet
    If the arbitral institution invites me, it must already have done its own analysis and presumably the respondent is also ok with arbitrating the dispute;
    otherwise why is the arbitral institution reaching out to me? This problem would be more relevant if it were ad hoc arbitration, where I would turn the matter down absent a signed arbitration agreement.
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  • Friday, July 25, 2025 7:24 PM | Anonymous
    Ask all Parties for a signed Submission Agreement, and then proceed.
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  • Friday, July 25, 2025 9:46 PM | Lisa Renee Pomerantz
    The starting point for the analysis under the Commercial Rules is Rule 7 which provides:The arbitrator shall have the power to rule on his or her own jurisdiction, including
    any objections with respect to the existence, scope, or validity of the arbitration
    agreement or to the arbitrability of any claim or counterclaim, without any need to
    refer such matters first to a court.
    Rules Amended and Effective September 1, 2022. COMMERCIAL RULES 15
    (b) The arbitrator shall have the power to determine the existence or validity of a
    contract of which an arbitration clause forms a part. Such an arbitration clause
    shall be treated as an agreement independent of the other terms of the contract.
    A decision by the arbitrator that the contract is null and void shall not for that
    reason alone render invalid the arbitration clause.
    (c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a
    claim or counterclaim no later than the filing of the answering statement to the
    claim or counterclaim that gives rise to the objection. The arbitrator may rule on
    such objections as a preliminary matter or as part of the final award

    This rule explicitly gives the arbitrator the authority to make a ruling as to the existence of an agreement to arbitrate.

    If the respondent contests the existence of such an agreement, the arbitrator, the arbitrator can ask the parties to submit evidence on the issue, which is permitted under Rule 25. Maybe the respondent has a copy of the signed agreement in its files. The arbitrator can then make an informed decision as to the existence of the agreement.
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    • Monday, July 28, 2025 5:44 PM | reid a.
      I agree that Commercial Rule 7 provides that an arbitrator has the power to determine the initial, gatekeeping question of arbitral jurisdiction. A case may reach the AAA and an arbitrator is selected where the parties dispute that one or more of their claims, counterclaims or defenses are subject to arbitration, in which case the first issue for the arbitrator to decide is the scope of jurisdiction to decide any all or none of contested factual or legal merits issues.
      In some cases the dispute may have been initiated in court (federal or state). In one such case the parties briefed their positions in motions to compel (or resist) arbitration, and the court decided that the question of arbitral jurisdiction needed to be resolved by an arbitrator.
      With respect to the question of a fully executed, versus signed by only one party, versus an unsigned agreement(s), some but not all of which contained an arbitration clause, the parties vigorously litigated before the arbitrator the applicability as well as the enforceability of one or more versions of the agreement(s) to transactions engaged over a multi year period of time. In sum, an arbitrator should generally not refuse an appointment in the context of a dispute between the parties where one is asserting a right to arbitrate appearing in a contractual arbitration clause , and the other parties are contesting the right to arbitrate some or all of the dispute.
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  • Saturday, July 26, 2025 4:35 AM | Geoffrey BH
    I would argue that there are subtleties about this question that are perhaps not at first apparent.
    For the arbitrator to refuse the appointment would be Io anticipate the Defence without a word said..
    The fact of the Claimant's request implies an assertion that the Respondent has agreed Io arbitrate - a presumption that it is for the Respondent to rebut (denial might be enough - a ping-pong of burden of proof).
    Arbitration could be customary in the business,
    The Respondent may have been aware on the terms before entering tacitly - or orally into an agreement followed as a matter of fact,
    One could write an essay1 And probably will.
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  • Saturday, July 26, 2025 2:57 PM | Dennis A Estis
    You can have an oral agreement, but there has to be evidence of the terms of that contract in order to enforce its existence.
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  • Sunday, July 27, 2025 12:40 PM | David E. Robbins
    In the securities industry, arbitration provisions are included in opening account forms. Customers can't do business with a brokerage firm without executing those forms. Sometimes, before the digital age, those forms were misplaced. When that customer filed an arbitration, FINRA or other self-regulatory organization would accept the case for arbitration since the customer derived the benefits of the customer agreement (i.e., trade executions, etc.). The law is consistent with that reasoning, as it should be.
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  • Sunday, July 27, 2025 2:24 PM | Hensell Harris
    I would think the only prudent thing to do was pause and ask the Respondent to agree/stipulate there was the requisite contract in force calling for arbitration, OR to agree on the record to arbitrate regardless of what earlier agreed to by parties. Absent such, arbitrator could be wasting a lot of peoples time and money.
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  • Sunday, July 27, 2025 2:28 PM | Robert Wright
    In my opinion no. A core precedent to arbitration is that the parties have to agree to arbitrate. Absent a written agreement to arbitrate, risks wasting time, expenses, and sets the award up for an appeal.
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  • Sunday, July 27, 2025 3:58 PM | Edward Groarke
    If there is a long term practice of complying with the terms and conditions of the contract, then I would proceed to the merits.
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  • Monday, July 28, 2025 1:05 AM | Nahendran Navaratnam
    Depends on the applicable Rules or law of the seat. In general, I would accept the appointment and deal with any objection to the absence of an agreement as a jurisdictional issue.
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  • Monday, July 28, 2025 6:59 AM | Mark L. Rodio, Esq.
    Written Arbitration Agreements Can be Enforced Even if Not Signed (Under Ohio law)

    It is a well-known general rule that a court cannot compel parties to arbitrate disputes that they have not agreed in writing to arbitrate. See, e.g., Teramar v. Rodier Corp., 40 Ohio App. 3d 39, 40 (Cuyahoga Cty. 1987). “Indeed, when a party resisting arbitration is not a signatory to an arbitration agreement, a presumption against arbitration arises.” Peters v. Columbus Steel Castings Co., Tenth Dist. No. 05AP-308, 2006-Ohio-382, at ¶ 11.

    Despite this general rule, Ohio courts previously have enforced arbitration agreements against non-signatories under several theories, including: incorporation by reference, assumption, ordinary contract and agency principles, veil-piercing or alter ego, third-party beneficiary, and estoppel. As the federal Sixth Circuit court has held (which covers Ohio, Michigan, Kentucky, and Tennessee), a non-signatory can be bound to an arbitration provision under an estoppel theory when it seeks a direct benefit from the contract. See Javitch v. First Union Securities, Inc., 315 F. 3d 619, 629 (6th Cir. 2003).

    Recently, Ohio’s Tenth District Court of Appeals (which covers Franklin County) held that while Ohio’s arbitration statute (ORC Ch. 2711) requires agreements to arbitrate to be in writing to be enforceable, there is nothing in the Statute that requires signatures to be on those written agreements. See Kevin O’Brien & Assoc. Co., L.P.A. v. E. Worthington, L.L.C., Tenth Dist No. 22AP-700, 2023-Ohio-3494, at ¶ 18. The Court also cited to a Fourth District case which noted that federal courts construing similar provisions of the Federal Arbitration Act (FAA) have consistently held that it is only necessary that the arbitration provision be in writing, not that such writing be signed. The Fourth District covers Adams, Athens, Gallia, Highland, Hocking, Jackson, Lawrence, Meigs, Pickaway, Pike, Ross, Scioto, Vinton, and Washington Counties.

    The Tenth District held since the plaintiff was seeking to enforce the unsigned contract, it was bound to the arbitration provision within it.

    Obviously, the best practice is to make sure that all agreements are in writing and signed by the party against whom you may try to enforce it. The easiest way to prove consent to a provision (whether for arbitration, indemnity, liquidated damages, recovery of reasonable attorney’s fees, etc.) is to have that party’s signature on a written agreement that includes the provision.

    Of course, sometimes project work might proceed without a signature on the contract or subcontract. If that happens, you should consult legal counsel before determining that the lack of signature prevents you from enforcing the provisions to which the parties agreed (but did not sign). For more information on these developments, see www.frantzward.com or contact Mark L. Rodio, Esq. at 216.515.1640 or mrodio@frantzward.com.
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  • Monday, July 28, 2025 7:57 AM | Joan Secofsky
    If the Respondent has agreed with AAA administration to arbitrate, then it is a non-issue. If Respondent disagrees, then there is no arbitration agreement in effect, and the case cannot proceed.
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  • Monday, July 28, 2025 11:02 AM | David Shaiken
    This was my case, and I declined to accept the appointment. There was at that point no appearance by the respondent, and I do not believe AAA rules apply unless the parties have agreed that they do apply, so I did not see AAA rules as giving me any authority. And, the way the demand was drafted, there was no allegation that this respondent had in fact signed a contract, just that the claimant usually enters into a contract with its customers. There was no allegation of an agreement, just that claimant usually makes agreements with customers. So, I saw no basis for the arbitration to proceed and declined the case. I do not know why the ADR organization accepted the case in the first place, and I do not know why claimant would have wanted to proceed an open itself up to vacatur later -- in other words, if I had represented the claimant I would have started a lawsuit under the circumstances, rather than file for arbitration.
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    • Monday, July 28, 2025 5:02 PM | Greg Drutchas
      I am with those who say getting involved is not ripe unless there is a mutually acknowledged agreement or unquivocal proof there was an agreement. Practically, the arbitrability of claims matters can be very long and do not really resolve the real claim. I think it is wrong to encourage disputes over issues like this where you have see a fight running up costs where the party asserting there is an agreement should have done things right in the first place. It's the kind of thing that makes people say I do not want to get anywhere near an arbitration
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  • Thursday, July 31, 2025 5:03 PM | Edwin H. Stern
    First comes the question of who determines arbitrability because in some states, this becomes an issue for a judge in terms of the ability of the arbitration itself to proceed. Earlier this month, the New Jersey Supreme Court in Fazio v Alice held that under evidence rule 406, a customary business practice could be used as a presumption that the practice was used in the particular case. Altice asserted a contract to arbitrate was included in paperwork related to issuance of a service contract. The Court did not decide the underlying issue because the general practice was not itself established. But if the existence of a form contract providing for arbitration of any dispute relating to the contract could be established, I might well hold that agreement required arbitration if proofs were sufficient to establish receipt of the agreement by the respondent.
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