Failure To Raise Arbitration As An Affirmative Defense Does Not Constitute A Waiver

My guess is that most practitioners would be surprised to think that failure to assert arbitration as an affirmative defense in an answer would constitute a waiver of the right to arbitrate. However, an Oklahoma intermediate appeals court concluded that it did, resulting in an appeal to the Oklahoma Supreme Court. In Howell’s Well Service, Inc. v. Focus Group Advisors, LLC, the Oklahoma Supreme Court, reversed the appellate court’s decision holding that, per the law of Oklahoma and its comparable federal counterpart, arbitration rights are appropriately raised by separate motion and need not be asserted as an affirmative defense in a party’s answer to a complaint.

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