Conflicting Arbitration Clauses

Arbitration Clauses

The California Supreme Court confirmed the right of a party in an arbitration agreement to include a clause authorizing enforcement of certain rights in court in addition to a clause mandating arbitration. In Boghos v. Certrain Underwriters at Lloyd's of London, 2005 DJDAR 8556, the plaintiff argued these two clauses conflicted, rendering the agreement ambiguous and unenforceable. The disputed clause references "service of suit" a common method contained in contracts in which the parties submit to jurisdiction of the courts.

This case illustrates careful drafting of arbitration agreements. Counsel included the words "notwithstanding any other item" in prefacing the agreement to arbitrate. This language permitted litigation only under certain conditions but nevertheless assured the plaintiff the right to arbitrate under the arbitration clause.