It is, of course, well established that, because arbitration is a creature of contract, a party should not be required to arbitrate a claim that it did not agree to arbitrate. How should an arbitrator reconcile that policy with institutional provider rules stating that 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 its answering statement to the claim or counterclaim that gives rise to the objection?

To illustrate the point, suppose a party asserts a claim in arbitration for breach of an agreement that does not contain an arbitration provision but the respondent declines to file an answering statement, thereby rendering the claim denied under the provider’s rules. Instead, the respondent objects to jurisdiction and arbitrability during the course of dispositive motion practice immediately following the close of the pleadings.

Under these circumstances, should the arbitrator find that the general denial resulting from the respondent’s failure to file an answering statement put the issues of jurisdiction and arbitrability at issue and, therefore, equivalent to the pleading of an objection to jurisdiction/arbitrability? If not, should the arbitrator find that the respondent waived its objection to jurisdiction and arbitrability by failing to file an answering statement explicitly setting forth its objection?  Or, should the arbitrator find that there is good cause for extending the respondent’s deadline to file its objection to jurisdiction/arbitrability because the respondent never agreed to arbitrate the claim and that a finding of waiver in these circumstances would violate the policy against compelling a party to arbitrate a claim in the absence of an agreement to arbitrate?

What are your thoughts?