What happens when the arbitrator designated in a contract is not available when a dispute arises? Recent decisions by the Pennsylvania Superior Court and the U.S. District Court for the District of New Jersey address whether an arbitration clause is enforceable when the specific arbitration panel identified in a contract is unavailable. In both Stewart v. GGNSC-Canonsburg — a Nov. 4 Superior Court opinion — and Khan v. Dell Inc. — an Aug. 18 decision from the District of New Jersey — the courts held that when an arbitration clause provides for an exclusive arbitrator and the arbitrator is unavailable, the arbitration clause is unenforceable. In both instances, the court refused to rewrite the arbitration clause and devise a new form and mode of arbitration for the parties.
The arbitration provision detailed in the Stewart opinion states: “‘[All claims, disputes, and controversies] shall be resolved exclusively by binding arbitration … in accordance with the National Arbitration Forum [the "NAF"] Code of Procedure … This agreement shall be governed by and interpreted under the Federal Arbitration Act.” The arbitration provision in Khan is substantively identical to the provision in Stewart .
