Arbitration clauses, like most terms in a contract, are enforceable against either party and, unless expressly or impliedly waived, should be enforced. While the federal courts and Congress have a policy that strongly favors arbitration, in some situations the factual nature of the case leads the court to conclude that the right to arbitrate the matter has been waived. The Second Circuit Court of Appeals, in In re Crysen/Montenay Energy Co. v. Shell Oil Co. and Scallop Petroleum Co., addressed this issue; however the court concluded that the policy favoring the enforcement of arbitration provisions outweighed the prejudice to Crysen/Montenay Energy Co. ("Crysen") and affirmed the ruling of the district court.2 Additionally, the court concluded that the bankruptcy courts have the power to stay non-core proceedings in bankruptcy in favor of arbitration.3
David A. Geisler II.,
Waiver - Not Yet: After More than Eight Years of Pre-Trial Litigation the Second Circuit Orders Arbitration - Crysen/Montenay Energy Co. v. Shell Oil Co. and Scallop Petroleum Co.,
2001 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2001/iss1/8