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Q: Contract Breach - Arbitration Scope ( No Answer,   4 Comments )
Question  
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?
Answer  
There is no answer at this time.

Comments  
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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