Commercial Arbitration: Enforcement of an Agreement to Arbitrate Future Disputes, 5 J. Marshall J. of Prac. & Proc. 72 (1971)
The John Marshall Journal of Practiceand Procedure [Vol.
Commercial Arbitration: Enforcement of an Agreement to Arbitrate Future Disputes, 5 J. Marshall J. of Prac. & Proc. 72 (1971)
Peter R. Sonderby
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Article 2
COMMERCIAL ARBITRATION: ENFORCEMENT
OF AN
AGREEMENT TO ARBITRATE
FUTURE
DISPUTES
By PETER R. SONDERBY*
INTRODUCTION
Arbitration is a procedure whereby parties, by voluntary
agreement, submit a dispute for binding determination to private
unofficial persons of their own choice rather than to the regularly
established tribunals of justice.1
Commercial arbitration is a
types of agreements.
specialized branch of arbitration dealing with disputes arising
under sales, construction, shipping and a wide variety of other
2
According to its proponents, arbitration as a method of
dispute settlement has a number of significant advantages over
ordinary litigation.
Those most commonly mentioned are: (
1
) it
is faster and less expensive; (2)
the availability of expert
decision makers; (
3
)
privacy, since arbitration proceedings are
not a matter of public record; and (4) the avoidance of the
hostility which destroys business and other intimate relationships
when a dispute is litigated in the courts. 8
For these and other reasons, the parties to commercial and
other types of contracts frequently include as part of their
* Member of the Illinois Bar, associated with Chadwell, Keck, Kayser
& Ruggles. A.B., University of Illinois, J.D., University of Illinois College
of Law, Assistant Editor, University of Illinois Law Forum wherein he
published two articles. Member, Order of the Coif.
ISee M. DOMKE, COMMERCIAL ARBITRATION 1 (1968) [hereinafter cited
as DoMKE]; F. KELLOR, AMERICAN ARBITRATION 4 (1948); K. Carlston,
The Theory of the Arbitration Process, 17 LAw & CONTEMP. PROB. 631
(1952); W. Sturges, Arbitration - What Is It?, 35 N.Y.U.L. REv. 1031
(1960).
2 DOMKE ยง1.01 at 3.
For detailed discussions of some of the specific
uses of commercial arbitration, see Symposium: Arbitration and Antitrust,
44 N.Y.U.L. REv. 1069 (1969); G. Asken, Resolving Construction Contract
Disputes Through Arbitration, 23 ARB. J. 116 (1969) : C. Bridge, Jr.,
Arbitration of Accident Claims, 54 ILL. B.J. 334 (1965) ; D. Collins, Arbitration
and the U.C.C., 41 N.Y.U.L. REv. 736 (1966); R. Coulson, Family
Arbitration - An Exercise in Sensitivity, 3 FAM. L.Q. 22 (1969); J. Dobkin,
Arbitrability of Patent Disputes Under the United States Arbitration Act,
23 ARB. J. 1 (1968): M. Domke, ForeignTrade Arbitration,46 CHI. B. REC.
65 (1964); L. Kovin, Uninsured Motorist Arbitration Under the Illinois
Statute. 21 ARB. J. 229 (1966) ; H. Rudnick. Arbitration of Disputes
Between Franchisorsand Franchisees,55 ILL. B.J. 54 (1966); J. Sembower,
Landlord-Tenant Arbitration, 24 ARB. J. 35 (1969); note, The Validity of
Arbitration Provisions in Trust Instruments, 55 CALIF. L. REV. 521 (1967);
note Arbitrationas a Means of Settling Disputes within Close Corporations,
63 COLUM. L. REv. 267 (1963) ; note Mandatory Arbitrationas a Remedy for
Intra-Close CorporateDisputes, 56 VA. L. REv. 271 (1970).
3 S. Mentschikoff, Commercial Arbitration. 61 COLUM. L. REv. 846,
848-49 (1961); see C. Taeusch, Extra-judicialSettlement of Controversies,
83 U. PA. L. REv. 147 (1934).
agreement a provision requiring arbitration of future disputes
which may arise thereunder. 4 However, when a dispute does in
fact arise, it is not uncommon that one of the parties (usually
the one against whom a claim is asserted) decides that perhaps
arbitration was not such a good idea after all and that the delays
and uncertainties of litigation would be more desirable. In such
a situation the party who wishes to arbitrate must find a means
to compel the recalcitrant party to live up to the arbitration
agreement. The purpose of this article is to provide a general
survey of the formal legal means which are available to compel
arbitration pursuant to an agreement to arbitrate future disputes
and to point out some of the problems which may be encountered
in attempting to utilize those means.
HISTORICAL BACKGROUND
A. At Common Law
At common law arbitration was viewed with disfavor and
this attitude persists today in some jurisdictions.- The origin of
the common law attitude is generally attributed to a dictum of
Lord Coke in 1609 in Vynior's Case., Involved there was an
action of debt on a penal bond by Vynior against Wilde for the
latter's breach of the bond for failing to submit a dispute to
arbitration. At that time it was customary for the parties to arbitration
agreements to post such bonds to insure compliance with the
agreement and in accordance with the rule then prevailing, a
judgment was awarded to the plaintiff for the full amount of the
bond.7 Although entirely unnecessary to anything decided in the
case Lord Coke nevertheless pointed out in his opinion that:
If I s (...truncated)