As we have previously written, N.J.L.J. Nov. 19, 2018, the published opinion in Flanzman v. Jenny Craig, Inc., 456 N.J. Super. 613 (App. Div. 2018), introduced a new element by which arbitration clauses in New Jersey were to be judged. Despite explicit provisions in the Federal Arbitration Act and the New Jersey Revised Uniform Arbitration Act (as well as prior acts and Appendix XXIX-B to the Court Rules) providing a solution to the perceived problem, the court required that clauses must either select the forum or arbitrator to decide the dispute to be arbitrated or specify a means of designating the arbitrator.

On Sept. 11, 2020, the New Jersey Supreme court reversed that opinion and held, consistent with comparable cases in federal and state courts throughout the country, that Section 11 of the New Jersey Act, N.J.S.A. 2A:23B-11, which authorizes a court to designate an arbitrator under various circumstances, provides a means to fill the "gap" left by the parties' contractual language. Notably, the Supreme Court held that this result is consistent with Atalese v. United States Legal Services Group, L.P., 219 N.J. 430 (2014), as well as the law governing contracts in New Jersey generally.

We welcome this return to first principles. As the Supreme Court stated, parties are best-advised to designate the forum or arbitrator in their clauses, as they are free to add more detail to the description of the arbitral process, but more bare bones clauses may also be appropriate and fit the parties' preferences in drafting clauses.