In his article in The Legal (“Having Your Cake and Eating It, Too: Illusory Arbitration Agreements,” published May 22), Charles Forer explained that if a party to an arbitration agreement retains the right to make a retroactive change, the agreement to arbitrate may be considered illusory and no longer binding.
But, can the unanticipated unavailability of a selected arbitrator, unrelated to the action of any party, also render the entire arbitration agreement unenforceable? As the following discussion will reflect, attorneys should consider this possibility when drafting arbitration agreements.
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