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Subject:
Contract Breach - Arbitration Scope
Category: Business and Money Asked by: justice_seeker-ga List Price: $25.00 |
Posted:
31 Mar 2006 09:18 PST
Expires: 30 Apr 2006 10:18 PDT Question ID: 714014 |
I need some help interpreting a paragraph from a contract. "Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, or any failture to agree where agreement of the parties is necessary to pursuant hereto, including the determination of scope of this Agreement to arbitrate, shall be resolved by the following procedures:" The contract then goes on to list a mediation and then arbitration provision. My questions are as follows: 1.) If breach of contract, tortuous interference, and sexual harrassment claims arise out of this Agreement, are all of these claims governed by the arbitration clause of the contract? 2.)Is mediation/arbitration the only forum in which these claims can be addressed due to the wording of the paragraph above? 3.) Does the Arbitrator have the authority to limit which of these claims can be heard in the arbitration proceeding? |
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There is no answer at this time. |
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Subject:
Re: Contract Breach - Arbitration Scope
From: perhaps-ga on 31 Mar 2006 15:06 PST |
Does the contract have a clause such as "this agreement is governed by the laws of the state of X"? If not, what state are you in? (In general, contracts are governed by state law.) |
Subject:
Re: Contract Breach - Arbitration Scope
From: doubledizzel-ga on 31 Mar 2006 15:43 PST |
THIS IS AN OPINION ONLY, I AM NOT AN ATTORNEY, PLEASE SEEK LEGAL COUNSEL. I have a hard time understanding how tortious interference or sexual harassment claims could arise out of the contract. First of all, tortious interference can only be committed by a third party to the contract, and is a Tort claim, not a contract claim. Sexual harassment is also a tort claim. Although they may relate to the contract in some manner, they likely do not arise out of it. The breach of contract claim would probably be go to arbitration. Although you can always sue in court, the court may make you go through mandatory arbitration for the breach of contract claim due to the arbitration clause. I haven't read the arbitration clause though because you didn't post it, so I'm not sure exactly what forum it would be. If a specific arbitration forum is listed in the arbitration clause, you may be able to find the rules of that forum which would further explain the duties and authorities of the arbitrator. The arbitrator can likely decide any issues that the parties submit to her. This would likely include whether or not the the claims are covered by the arbitration clause. THIS IS AN OPINION ONLY, I AM NOT AN ATTORNEY, PLEASE SEEK LEGAL COUNSEL. |
Subject:
Re: Contract Breach - Arbitration Scope
From: justice_seeker-ga on 09 Apr 2006 20:48 PDT |
Dear perhaps-ga, In response to your question, there is no choice of law clause in the Agreement. This Agreement involves interstate commerce and the scope of the contract is International. At the time this Agreement was written, the Claimant resided in Ontario and Respondent's head office was in Massachusetts. The parties drafted the Agreement in September, after which the respondent sent correspondence from their own legal counsel with a clause that the Agreement was governed by the laws of Ontario. Upon this drafting, the plaintiff billed and received $10k to begin the project. Both parties did not sign the Agreement for another 3 months. Just prior to the final Agreement, the Respondent's lawyers added a "forum" clause into the Agreement requiring any controversy or claim be handled through a mediation/arbitration process. When questioned about this change, Respondent asserted that the clause outlines the process for handling any dispute and issues between the parties. It was not meant to represent choice of law or alter anything that had been agreed upon in September. In light of these assurances, Claimant contintued performing services in good faith. The arbitration clause states that "either party may submit the dispute to binding Arbitration administered by the AAA, pursuant to the Commercial Arbitration Rules of the AAA at the time of submission. New York Arbitration Law shall govern." In light of this clause, the Claimant brought the dispute before the AAA, as required. After previously assuring the Claimant that "any controversary or claim..." would be handled through the AAA, the Respondent is now attmpting to call on NY Law to strike puntitive parts of the plaintiff's claims. It would seem there was intentional misrepresentations on the part of the Respondent in the drafting of the Arbitration clause. Neither party has any connection to New York. Since the contract involves parties of different nationalities and interstate commerce the Plaintiff had understood that the contract was governed by the Federal Arbitration Act. |
Subject:
Re: Contract Breach - Arbitration Scope
From: justice_seeker-ga on 09 Apr 2006 21:07 PDT |
Dear doubledizzel - ga, The contract involves claims of fraud, misrepresentation, sexual harassment and tortuous interference. The plantiff signed a services contract of international scope with a U.S. division of a multi-national company. Over a year into the contract, which provides royalties on products sold, an employee from an unrelated division (and country) began sexually harassing the plaintiff, threatening to advise the other division to breach the contract if sexual favors were not received. This employee had nothing to do with the drafting, signing or performance of the original contract, but merely sought to interfere with the terms of the contract. The plaintiff refused to provide sexual favors and the contract was breached by the other division. The corporation stated that the breach was influenced in large part by this employee's influence, and by the realization that they could get out of their on-going royalty obligations to plaintiff without consequence. |
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