Friday, November 2, 2018
Alison Frankel has a write-up of A-1 Premium Acceptance, Inc v. Hunter, No. SC96672, a case out of Missouri that refuses to substitute an arbitrator when the arbitrator named in the arbitration clause is no longer available (in this case, the specified National Arbitration Forum no longer provides arbitration services on consumer loans like in the contract at issue here). This is yet another court weighing in on a split that's developed: Can arbitration be compelled when the arbitration clause specified a now-unavailable arbitrator, in which case the court substitutes an arbitrator, keeping to the pro-arbitration nature of the contract? Or should courts refuse to rewrite such contracts to compel arbitration in a forum not originally agreed to, rather allowing judicial proceedings to proceed?
Myanna Dellinger has already written about this issue in a context of another case. Given how many arbitration clauses out there might still be in effect that specify a now-defunct arbitrator, this doesn't seem like an issue that's going away. Frankel's article concludes by quoting A-1's attorney as indicating that it will petition the Supreme Court to resolve the dispute.
(h/t to Eric Chiappinelli for sending this along to us!)