'Prejudice to Petitioner Not Necessary for Waiver of Arbitration Rights,' by Robert M. Hall

I. Introductionⁱ

Today, many commercial and consumer contracts contain an arbitration clause. Sometimes an aggrieved party to such a contact seeks a remedy in court rather than before an arbitrator. Sometimes the respondent proceeds with the litigation for a time but eventually decides to assert its arbitration rights. Then the issue becomes whether or not the respondent has waived its arbitration rights.

The courts have devised various tests for determining waiver but there has been a split in the circuit courts as to whether prejudice to the petitioner is necessary element to proving waiver. The purpose of the …