Waiver of a Contractual Arbitration Agreement by Causing Prejudice to the Opponent: Should Federal Courts Adopt a Bright-Line Test - Kramer v. Hammond

Authors

Mark G. Anderson

Abstract

Due to the high costs of litigation and the backlog on court dockets, parties to a contract are beginning to rely more and more on contractual provisions requiring arbitration for future disputes.2 In the past, courts were reluctant to enforce these provisions,' but now the federal courts enforce a strong presumption in favor of such provisions.' Because of this strong federal policy, waiver of the contractual agreements is not easily inferred.5 To overcome this presumption federal courts have developed tests to determine when waiver of contractual agreements to arbitrate occurs.6 These tests focus on whether the opposing party has been prejudiced by delay in asserting a contractual right to arbitration.7 However, the question remains-what exactly amounts to prejudice?

Recommended Citation

Mark G. Anderson, Waiver of a Contractual Arbitration Agreement by Causing Prejudice to the Opponent: Should Federal Courts Adopt a Bright-Line Test - Kramer v. Hammond, 1992 J. Disp. Resol. (1992)
Available at: https://scholarship.law.missouri.edu/jdr/vol1992/iss1/10