This article discusses advance consent as the cornerstone of arbitration. The consent to arbitrate generally comes in a contract signed in advance of a dispute. Without consent, a person much generally resort to the courts rather than arbitration. If you have questions about arbitration without advance consent, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

The following are U.S. public policies that are well-defined and dominant, ascertained by reference to the laws and precedents cited, against coercion to arbitration without contract:

Consent without coercion is the foundational requirement for arbitration and “the first principle that underscores all of our arbitration decisions”—courts cannot enforce arbitration beyond the scope of the parties’ contractual agreement[1] to voluntarily arbitrate, and a person cannot be compelled to submit to arbitration any dispute which he has not contractually agreed to submit in advance and without coercion. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671–73 (2010) (vacating arbitral award without contract); Lamps Plus, Inc. v. Varela, 139 S.Ct. 1407, 1415 (2019) (rejecting arbitration upon non-signatory); De Gracia v. Royal Caribbean Cruises Ltd., 580 F. Supp. 3d 1217, 1222 (S.D. Fla. 2022) (same).[2]

Without consent, arbitrators wield no power whatsoever. Lamps Plus at 1415.[3] To protect against attempts to contrive consent over objections, the Supreme Court and Eleventh Circuit made clear that people cannot be coerced to arbitrate, and an arbitrator has no authority absent persons’ voluntary, knowing, and intentional agreement to arbitrate, made in advance of arbitration:

Arbitration is a matter of contract and of consent. ‘Arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648–49 (1986). The Federal Arbitration Act . . . ‘imposes certain rules of fundamental importance, including the basic precept that arbitration is a matter of consent, not coercion.’

JPay, Inc. v. Kobel, 904 F.3d at 928–29 (11th Cir. 2018); Id.

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Where a person does not sign an arbitration agreement, in advance and without coercion, this Court must deny a petition for recognition and enforcement of a compelled arbitration without consent. N.Y. Conv. Art. V(2)(a); Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 777–94 (2d Cir. 1995) (reversing order enforcing arbitral award against non-signatory under N.Y. Convention based on purported veil-piercing); Sarhank at 662–63; Rossisa at *23–24 n.11 (citing M & C Corp. v. Erwin Behr GMBH & Co., KG, 87 F.3d 844, 848 (6th Cir. 1996); Exceed Int’l Ltd. v. DSL Corp., Civil Action No. H-13-2572, 2014 U.S. Dist. LEXIS 59913, at *35–36 (S.D. Tex. Apr. 30, 2014) (denying application to confirm foreign arbitration award under Art. V(2) where parties did not enter contract to arbitrate).[4]

In analyzing a petition for recognition and enforcement of an arbitral award against a non-signatory, the Supreme Court recently held that the courts must not assume a person has agreed to arbitrate an issue; a person seeking recognition of an arbitral award must show “there is clear and unmistakable evidence” a person agreed to arbitrate. Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524, 531 (2019). “If there is any “silence or ambiguity” then the Court must conclude the parties did not authorize arbitration. Lamps at 1416–17.[5] The Court must refuse to infer consent, and there is no general presumption in favor of arbitration without the initial confirmed consent to arbitrate. Id.; Dasher v. RBC Bank (USA), 745 F.3d 1111, 1115–16 (11th Cir. 2014); De Gracia, at 1222.[6]

The Court must “presume that parties have not authorized arbitrators to resolve [] ‘whether the parties have a valid arbitration agreement” or whether the parties have authorized arbitrators to resolve such questions. Lamps at 1416–17; First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944–45 (1995). There must be “clear and unmistakable” evidence of consent without coercion, or else the Court must deny the petition. First Options at 939 (1995) (quoting AT&T, 475 U.S. at 649). The Court (and arbitrators) “are not to twist the language of the contract to achieve a result which is favored by federal policy but contrary to the intent of the parties” to not arbitrate. Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1214 (11th Cir. 2011) (holding against arbitration); Terris v. Sprint Corp., 2023 WL 5863524, at *2 (M.D. Fla. Sept. 11, 2023) (denying arbitration). A person cannot waive an objection to arbitral jurisdiction or lack of consent by filing an appearance, responding to an arbitration complaint with objections to jurisdiction, or complying with arbitral orders and notices to respond to matters. Pouyeh v. Public Health Tr. of Jackson Health Sys., 718 Fed App’x 786, 790–92 (11th Cir. 2017) (holding same).

The United Nations’ New York Convention and Federal Arbitration Act specifically provides that our court system can refuse to recognize and enforce an arbitral award where the respondent never agreed or consented to arbitrate his rights without coercion, and an arbitrator exceeded his powers by exercising jurisdiction anyway. N.Y. Conv. Art. I, II, V(1)(a), (c), and (d), and V(2)(b); 9 U.S.C. § 10(a); see also University Commons-Urbana, Ltd. v. Universal Constructors Inc., 304 F.3d 1331, 1337 (11th Cir. 2002) (discussing law that an arbitration decision should be vacated if the arbitrators show they knew of the law and expressly disregarded it); Quamina v. U.S. Bank Nat’l Ass’n, 2020 WL 9349559, at *3–5 (S.D. Fla. Dec. 24, 2020) (denying motion to confirm arbitration award where respondents had not signed arbitration agreement, under 9 U.S.C. § 10).

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Under U.S. law generally a court must determine whether the parties have a valid arbitration agreement in the first place; that determination is made by the courts not the arbitrator:

It is well settled in both commercial and labor cases that whether parties have agreed to ‘submit a particular dispute to arbitration’ is typically an ‘issue for judicial determination.’ . . . It is similarly well settled that where the dispute at issue concerns contract formation, the dispute is generally for courts to decide. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 [] (1995).

Granite Rock Co. v. Int’l Broth. of Teamsters, 561 U.S. 287, 296 (2010).

As stated in First Options, this issue “has a certain practical importance . . . because a party who has not agreed to arbitrate will normally have a right to a court’s decision about the merits of its dispute (say, as here, its obligation under a contract).” 514 U.S. 938, 942 (1995).

Refusing to recognize or enforce an arbitral decision does not deprive the petitioner of judicial process or a forum to seek relief. Each of us has the fundamental constitutional right in the U.S., and in Florida, to access our own democratically chosen courts and to have our legitimate court system adjudicate our rights. Straub v. Monge, 815 F.2d 1467, 1469 (11th Cir. 1987) (confirming the fundamental right to access the courts); Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (“Access to the courts is clearly a constitutional right, grounded in the First Amendment, the Article IV Privileges and Immunities Clause, the Fifth Amendment, and/or the Fourteenth Amendment.”).[7]

This article discussed advance consent as the cornerstone of arbitration. That consent to arbitrate generally comes in a contract signed in advance of a dispute. Without consent, a person much generally resort to the courts rather than arbitration. If you have questions about arbitration without advance consent, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

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[1] As the Supreme Court has repeatedly ruled, “arbitration is simply a matter of contract;” the parties must agree and voluntarily consent to arbitration, or there can be no arbitration. Dasher v. RBC Bank (USA), 745 F.3d 1111, 1115–16 (11th Cir. 2014) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). The FAA was passed merely to ensure that parties adhere to their contracts to arbitrate, not to impose arbitration upon those who did not contract or to coerce non-signatories to arbitrate against their intent and will. Albatross S.S. Co. v. Manning Bros., Inc., 95 F. Supp. 459, 463 (S.D.N.Y. 1951) (quoting from the House Committee Report).

[2] See also ACTS Ret. Life Cmtys, Inc. v. Molony, 2015 WL 12711588, *3 (S.D. Fla. Apr. 20, 2015) (same); In re Checking Account Overdraft Litig., 915 F. Supp. 2d 1334, 1340 (S.D. Fla. 2013) (same); JPay, Inc. v. Kobel, 904 F.3d 923, 928 (11th Cir. 2018) (“Arbitration is a matter of contract and of consent.”); Haasbroek v. Princess Cruise Lines, Ltd., 286 F. Supp. 3d 1352, 1362 (S.D. Fla. 2017); Zimring v. Coinmach Corp., No. 00-cv-8111, 2000 WL 1855115 (S.D.N.Y. Dec. 19, 2000) (holding company officer could not be compelled to arbitrate); accord VRG Linhas Aereas S.A. v. Matlin Patterson Glob. Opportunities Partners II L.P., No. 11-cv-0198, 2014 WL 4928929, at *2 (S.D.N.Y. Oct. 2, 2014), aff’d 605 F. App’x 59 (2d Cir. 2015); CMS Inv. Holdings, LLC v. Castle, No. 14-Cv-9381 (SHS), at *7 (S.D.N.Y. Aug. 31, 2016).

[3] See also Sarhank Grp. v. Oracle Corp., 404 F.3d 657 (2d Cir. 2005); Rossisa Participacaoes S.A. v. Reynolds & Reynolds Co., 18-cv-00297, *11 (S.D. Ohio Sep. 6, 2019). This requirement is expressly required in the New York Convention itself at Article I. N.Y. Conv. Art. I (“The agreement shall be set forth in an instrument signed by the parties, or in the form of an exchange of letters, telegrams, or telex communications.”); Rossisa at *11. Further, N.Y. Conv. Article II effectively requires that each person must be a party to the agreement at issue such that the party agreed to be bound by the arbitration provision contained therein. T.T. Int’l Co., Ltd. v. BMP Int’l, Inc., 2023 WL 3453565, at *4 (M.D. Fla. May 15, 2023) (holding a non-party to contract could not be compelled to arbitrate, under N.Y. Conv. Art. II).

[4] Courts have hypothesized situations in which arbitration could be compelled without consent in advance, such as through corporate veil-piercing or estoppel to circumvent lack of consent. See World Rentals v. Volvo Const., 517 F.3d 1240, 1248–49 (11th Cir. 2008) (affirming denial of arbitration under veil-piercing and estoppel theories); Taylor Grp., Inc. v. Indus. Distribs. Int’l Co., 506 F. Supp. 3d 1256, 1275 (S.D. Fla. 2020) (denying arbitration on non-signatories); Garcia v. J&J, Inc., Case No. 19-cv-60728-BLOOM/Valle, at *6 (S.D. Fla. Nov. 7, 2019) (denying arbitration on veil-piercing theory); Variable Annuity Life Ins. Co., Case No. 09-80113-CIV-Marra/Johnson (S.D. Fla. Sep. 21, 2009) (denying arbitration on veil-piercing theory); Pilgrim Skating Arena, Inc. v. Laubenstein, Case No. 20-cv-765-SPC at *11 (M.D. Fla. Mar. 5, 2021) (“Laubenstein did not agree to arbitrate this dispute with Pilgrim. Nor can Pilgrim compel non-signatory Laubenstien into arbitration under a theory of estoppel.”); Fifth Third Bank v. Rivera, Case No. 12-cv-68-Orl-31DAB, at *3 (M.D. Fla. May. 18, 2012) (receipt of benefit is insufficient to pierce veil and compel arbitration on non-signatory); In re Knepp, 229 B.R. 821, 836–37 (Bankr. N.D. Ala. 1999) (rejecting arbitration upon non-signatories).

[5] Concluding otherwise “might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.” Lamps at 1417,

[6] See also CMS Inv. at *7 (quoting Applied Energetics, 645 F.3d at 526).

[7] In contrast, no person (arbitrator) can unilaterally usurp the democratically chosen state court system, authorized by vote, or eliminate our constitutional rights to be tried in our elected government court system. See, e.g., supra; infra; Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. 665, 670–71 (2015) (consent required); Bank Markazi v. Peterson, 578 U.S. 212, 225–26 (2016) (cannot usurp a court’s power).