Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which he has not agreed to so submit. Courts have held that the decision to arbitrate must be express because by “agreeing to submit disputes to arbitration, a party relinquishes his courtroom rights.” Fuller v. Guthrie, 565 F.2d 259, 261 (2d Cir. 1977)
  2. The existence of an arbitration agreement is just the starting point for determining whether a dispute will be subject to arbitration. For a variety of tactical reasons, it is more often than not that one party is either fighting to get in or fighting to get out of arbitration.
  3. However, in light of recent developments in case law, particularly that of the U.S. Supreme Court, U.S. courts are less inclined to get involved in the arbitral process and increasingly defer to arbitration. Thus, it is becoming more difficult to get out of arbitration. On the other hand, if there is a broad arbitration clause and the claims “touch matters” relating to the parties’ agreement, it is easier than ever to get into arbitration.

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