Choice Of Law Provision Can Be Determinative Regarding Arbitrability

Contract drafters who treat choice of law provisions as insignificant should think twice, at least if there is a desire to ensure disputes will be arbitrated. In Frederick v. Law Office of Fox Kohler & Associates PLLC LLC , the Third Circuit, called to assess whether the lower court had incorrectly interpreted an arbitration provision under New Jersey rather than Delaware law, concluded that the court indeed erred and that the law of the two states did substantively differ regarding the enforceability of the arbitration provision. In the particular matter, however, the lower court’s error was deemed harmless, as the Third Circuit concluded that the dispute was arbitrable even under the more restrictive New Jersey statutory language.

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