Arbitration

July 23rd, 2019 by Rieders Travis in Arbitration

ARBITRATION-EXISTENCE OF AN ARBITRATION AGREEMENT, COURT OR ARBITRATOR MXM Construction Co. v. New Jersey Building Laborers Statewide Benefit Funds, 2020 U.S. App. LEXIS 29039 (3rd Cir. September 14, 2020) Restrepo, C.J.  Who decides—a court or an arbitrator—whether an agreement exists, when the putative agreement includes an arbitration provision empowering an arbitrator to decide whether an agreement exists? Under the Federal Arbitration Act (FAA), 9 U.S.C. § 4, questions about the “making of the agreement to arbitrate” are for the courts to decide unless the parties have clearly and unmistakably referred those issues to arbitration in a written contract whose formation is not in issue. Here, the formation of the contract containing the relevant arbitration provision is at issue. Therefore, we will affirm. Unless the parties clearly and unmistakably agreed to arbitrate questions of contract formation in a contract whose formation is not in issue, those gateway questions are for the courts to decide. The allegations are enough to state a claim for fraud in the execution of the SFA by reason of excusable ignorance. Without a validly executed SFA, there could be no incorporation of the CBAs, and without validly…