News & Noteworthy

Authored - NJ Contract Law Update - Presumption Against Waiver Of Arbitration
OCTOBER 24, 2013 | Windels Marx - Commercial Litigation

Salinas v. New Jersey Re-Insurance Co., ___ 2013 WL 3014127 (N.J. App.Div June 19. 2013), reaffirmed the "presumption against waiver of an arbitration agreement; which can only be overcome by clear and convincing evidence that the party asserting it chose to seek relief in a different forum." This is a variation of the arbitration-waiver issue referenced in prior Articles.

In Salinas, a demand for arbitration, coupled with a Superior Court Complaint "to compel defendant to select [an...] arbitrator", did not warrant a finding of waiver of arbitration--even when the discovery 'took place' (at least in some sense) in the Superior Court matter.

Interestingly, not only had an early motion to compel arbitration been denied; but in addition, an interlocutory appeal had also been denied--each apparently without any statement of judicial reasons. "[A]t trial, plaintiff renewed his request to compel...arbitration." Denial of that request led to the plaintiff's successful appeal.

Salinas may be an 'easy case'; but the principle against presuming arbitration waiver is strong.

Contact & Legal Disclaimer

Clark Alpert is the author of Guide to New Jersey Contract Law, published by the New Jersey Institute for Continuing Legal Education, originally published in 2007 and updated in November 2011 and October 2013. His updates on New Jersey contract law are based on recent issues and practical methods for addressing similar situations in your practice or business. They are not intended to serve as legal advice. Clark welcomes your questions and comments.

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