Enforcing an agreement to arbitrate

posted by Michael Fortney  |  Dec 16, 2009 9:35 PM in Construction Law

One party to the arbitration agreement may initiate a court action over an arbitrable dispute.  The other party to the arbitration agreement must then either:

(1) agree to the court's authority to rule on the controversy; or 

(2) assert the party's right to arbitrate the dispute under the arbitration agreement.  

The assertion of the right to arbitrate the dispute is an affirmative defense.  It must be stated in the answer.  To enforce the right to arbitrate, the party must then file a motion to stay the lawsuit in favor of arbitration.  If both parties to the agreement ignores the right to arbitrate, the right is waived.

Both Ohio statutory law and public policy favor and encourage dispute resolution through arbitration.  Ohio R.C. §2711.02; Kline v. Oak Ridge Builders, Inc. (1995), 102 Ohio App. 3d 63, 65; Gibbons-Grable Co. v. Gilbane Building Co. (1986), 34 Ohio App. 3d 170, 173. 

Ohio R.C. §2711.02 provides:

If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement . . . .

As one court has stated, "R.C. §2711.02 requires the trial court to stay an action brought therein, upon application of one of the parties, when it is satisfied that the issue involved in the action is referable to arbitration under a written agreement between the parties to arbitrate."  Kline, 102 Ohio App. 3d at 65 (emphasis added).

The determination of whether a controversy is arbitrable under an arbitration provision of a contract is a question of law for the court, not a question for the jury. The court should decide the issue upon an examination of the contract.  

Ohio's Arbitration Act provides that a trial court's denial of a party's motion to stay and refer to arbitration is a final order subject to review on appeal.  Ohio R.C. §2711.02.

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Michael Fortney Neil Klingshirn Joseph Spoonster
Michael Fortney
Construction Law, Employment and Labor Law, Business Law, Litigation, Arbitration

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