In the prior posting, I discussed arbitration provisions and to clearly and unmistakably include in the arbitration provision the person — judge or arbitrator — you want to determine the arbitrability of a given dispute.

In another posting, I discussed how the doctrine of equitable estoppel can be used by a non-signatory to a contract with an arbitration provision to compel arbitration or to compel a non-signatory to arbitration. This occurs “when a signatory to a contract containing the arbitration clause raises allegations of substantially interdependent and concerted misconduct by both a non-signatory [to the contract] and one or more of the signatories to the agreement.” Kratos Investments LLC v. ABS Healthcare Services, LLC, 46 Fla.L.Weekly D603a (Fla. 3d DCA 2021) (internal citations omitted).

Whether or not to include an arbitration provision in your contract is a dispute resolution consideration that should be factored in on the frontend.  Further, whether or not to compel a given dispute to arbitration based on an arbitration provision (whether or not you are a non-signatory to the contract with the arbitration provision and want to raise equitable estoppel) is another dispute resolution consideration that should be factored in when the dispute arises.  It is always best to consult with counsel during the contract drafting and negotiation process and when the dispute arises to best prepare for your dispute resolution options moving forward

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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