Originially from: World Arbitration and Mediation Review (WAMR)

Arbitrability — Civil Procedure
Compelling Arbitration of an Unsigned Arbitration Agreement
Christopher P. Johnson, Esq. Mr. Johnson is an associate in the
Litigation Department of Donovan Leisure Newton & Irvine in New York.
The Federal Arbitration Act and many state statutes permit a party to
compel arbitration of a dispute provided that there is a written agreement
between the parties containing an arbitration provision. These statutes,
however, do not necessarily require that the agreement containing the
arbitration provision be signed by the parties. If a (dispute arises under
such a written agreement before it has been executed, the first question
that arises is whether either party has a right to compel that dispute to be
arbitrated.
This article will address some of the issues that would face anyone
seeking to compel arbitration pursuant to an unsigned agreement. After
summarizing the FAA and the rather unique procedures it employs to
compel arbitration, the article will discusses some substantive problems
that face the compelling party. Finally, it addresses some tactical
considerations such as the collateral estoppel effect of a trial addressing
only the existence of an agreement to arbitrate.
I. The Federal Arbitration Act
The primary substantive provision of § 2 of the FAA states that a
written arbitration agreement in a commercial or maritime contract “shall
be valid, irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract.”
Should a party to an interstate agreement to arbitrate refuse to submit a
dispute to arbitration, § 4 of the Act allows any party aggrieved by such
refusal to petition any federal district court “which, save for the
[arbitration] agreement,” would have subject matter jurisdiction for an
order compelling arbitration. This section makes it clear that an interstate
arbitration agreement is an insufficient basis for federal court jurisdiction;
rather, one can petition a federal court only if the court would have been
empowered to hear a lawsuit between the parties, such as where there is
diversity of citizenship.