Parties don’t always respect their arbitration agreements. Sometimes they commence litigation even though they agreed to resolve their disputes by arbitration. Other times, they refuse to participate in an ongoing arbitration. Frequently, they do both. And often the only reliable way to deal with a party that sidesteps its obligation to arbitrate is to seek the assistance of the courts.
That recourse to the courts may at times be indispensable to the enforcement of an arbitration agreement creates for arbitration a very particular predicament. One way of understanding an arbitration clause, after all, is as an agreement by which parties give up a right they would otherwise have to resolve their disputes in court; their intent is to resolve those disputes by arbitration instead of in the courts. And herein lies the predicament. On the one hand, I may have no choice but to go to court to compel a party to arbitrate. On the other, my invocation of the judicial process to enforce my arbitration rights is fundamentally at odds with my rationale for having entered into an arbitration agreement in the first place; the precise court involvement required to give effect to my intent to arbitrate in some fundamental sense subverts it.
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