Applying the UCC’s “Battle of the Forms” Principles to Resolve Arbitrability

With so many contracts in the supply chain affected by force majeure notices related to the SARS-CoV-2 pandemic, there will undoubtedly be disputes over who must bear the losses resulting from these supply issues that parties cannot resolve without the intervention of a neutral decisionmaker. But do the parties have to arbitrate such a dispute when one party’s form contains an arbitration clause, but the other party’s form does not? When an arbitration clause delegates questions of arbitrability to an arbitrator, you may need to decide as a threshold matter if an arbitration clause is enforceable by applying the “battle of the forms” rules under the applicable state’s Uniform Commercial Code (UCC). 

Charles E. Harris, II, who is experienced in addressing questions of arbitrability as an arbitrator and litigator, will provide step-by-step guidance on how you can properly decide these issues.  Mr. Harris is a partner in Mayer Brown’s Litigation & Dispute Resolution group. Along with being an accomplished litigator, Charles has significant experience in all areas of arbitration. He has represented clients engaged in domestic and international arbitration before many administrators, including the AAA, ICDR, ICC, and IFTA. He has also litigated dozens of actions to enforce arbitration agreements. And, in doing so, Charles has faced many threshold questions of arbitrability, such as whether the court or an arbitrator decides if an arbitration agreement permits class arbitration and whether the FAA preempts certain state laws. Charles also acts as a commercial and consumer arbitrator for the AAA, presiding over arbitrations ranging from complex computer software integration disputes to disputes regarding the control of a business entity.