Arbitration clauses are extremely common in construction contracts and subcontracts. In the event of a dispute, these clauses typically reflect the parties’ mutual agreement that any disputes arising from the project shall be arbitrated. Arbitration is similar to traditional litigation in many respects, but takes place out of court and is designed to be more efficient and cheaper. Both federal and Louisiana law strongly favor arbitration, and save a few exceptions, written pre-dispute arbitration agreements “shall be valid, irrevocable, and enforceable.”
Whether a party is required to arbitrate rather than litigate first depends on two issues: 1) whether the agreement to arbitrate is valid, and 2) whether the agreement—by its terms—applies to the type of controversy at issue between the parties. Additionally, a party’s actions within a court proceeding can be deemed a “waiver” of the right to compel the same dispute into arbitration. In the typical dispute, the analysis will be straightforward, and the clause will be enforced, forcing the parties to resolve their dispute through binding arbitration rather than using the court system.
This article focuses on the admittedly rare situations in which a court may have proper grounds not to enforce an arbitration provision contained in the parties’ contract.
1. Contract Not Fully Executed by Both Parties
The threshold question in deciding whether parties must arbitrate is whether the parties actually agreed to arbitrate. In the typical scenario, both parties will have signed the contract containing the arbitration clause, and there will be no question that they agreed to arbitrate. Even if one of the parties does not know the contract contains the arbitration clause or does not understand its consequences, the party will still be required to arbitrate disputes. Louisiana courts have held that a signing party cannot avoid a contract’s terms by claiming that he did not read the contract, that he did not understand contract, or that the other party did not explain contract to him.
Even when both parties to a contract do not sign, the parties may still be bound in certain scenarios. Louisiana law is clear that a party who prepares a contract and presents it to another for signature, but never personally signs, cannot later attempt to claim that he or she is not bound by the contract or its provisions. Thus, although many may think that they can escape the obligations of a contract that they did not sign, parties will often not be able to rely on such a technicality.
There is, however, an exception to this rule. A contract signed by only one party is not enforceable if the negotiations between the parties indicate that they have no intention of being bound until all of the terms of the agreement are incorporated into a written contract to be signed by both parties. A typical example is a situation where the parties orally negotiate the basic terms of an agreement but state that they want to have their managers or lawyers draft a formal, written document that both parties will sign. If there is never a written contract signed by both parties, there is never a contract or obligation to perform. It is important to note that a lack of contract does not necessarily mean that one party cannot be liable to the other. If one party begins performance or takes other action based on oral negotiations or promises, the other party may still be liable under theories of detrimental reliance or unjust enrichment.
Specifically as to arbitration agreements, despite a statute requiring them to be in writing, Louisiana law does not require the agreements to be signed to be enforceable. However, when an arbitration agreement—or contract containing an arbitration clause—lacks one or more parties’ signatures, the courts look to the conduct of the non-signing parties for evidence of intent to agree. Though no Louisiana court has yet addressed the issue, one could find that preparing and presenting a contract containing an arbitration provision is sufficient to show that party’s intent to agree to arbitrate. Otherwise the court will look to whether the non-signing party performed his obligations under the contract or otherwise acted as if the contract were enforceable. To avoid any uncertainty under this flexible inquiry, the party desiring the arbitration agreement should be sure to have both parties sign the contract for definitive proof of an agreement.
2. Unenforceable “Contracts of Adhesion”
Once a court determines that there was a mutual agreement to arbitrate, the clause will be enforced save some grounds for revocation of the contract such as fraud or error. Another relatively common ground upon which courts invalidate otherwise valid arbitration clauses is by finding that the agreement is a “contract of adhesion.” In general, a contract of adhesion is a printed contract—often in small font—prepared by one party with superior bargaining power presented to the other party in a “take-it-or-leave-it” manner. The nature of the contract is such that it raises questions as to whether the weaker party actually consented to its terms.
In these cases, the courts look beyond a party’s signature to determine if he or she truly consented to the arbitration clause. If an arbitration clause is adhesionary, the court will not enforce it and will allow the weaker party to proceed with a lawsuit despite their apparent agreement to arbitrate. In that sense, contracts of adhesion serve as an exception to the rule described above that a party is bound to contracts he or she signs regardless of knowledge or understanding of their terms. In the construction industry, these issues most often arise in the manufactured homes context where one party is a large corporation and the other is an individual buyer with little to no construction or business knowledge.
Contracts of adhesion are typically standard form contracts; however, not all standard contracts are adhesionary and not all adhesionary contracts are in a standard form. The Louisiana Supreme Court has recently listed the factors to review in determining whether an agreement is an unenforceable contract of adhesion as follows: (1) whether the physical characteristics of the arbitration clause are deceiving (i.e., the font and size of the print), (2) whether the arbitration clause is distinguished from the rest of the agreement (i.e., whether the clause was concealed), (3) whether the clause requires both parties to pursue arbitration rather than a suit in court, and (4) whether one party has superior bargaining strength.
The Louisiana Supreme Court has recently found an arbitration provision in a general waiver of liability signed by a patron of a trampoline park to be adhesionary. The arbitration provision of the waiver was the same size print and font as the rest of the electronic document. However, the two sentences regarding arbitration were “camouflaged” within a paragraph containing nine other sentences that did not pertain to arbitration. In addition, the waiver’s “I agree” language indicated to the Court that the agreement to arbitrate did not apply equally to the trampoline park, and the clause contained a liquidated damages provision which also only applied to the patron. Although the paragraph containing the provision had a box next to it that the patron affirmatively checked, the Court found that the patron’s electronic signature did not represent actual consent to arbitrate due to the adhesionary nature of the contract. Thus, the Court invalidated the provision.
It should be noted that it would be almost impossible for one business to assert this defense against another because they would almost certainly have similar bargaining strength. Additionally, the party who does not want to sign a contract with an arbitration provision could easily walk away from the deal and work with someone else instead.
3. Waiver of Right to Arbitration
The rights provided by an otherwise valid arbitration clause can also be unintentionally “waived” by one of the parties. Louisiana courts have limited the waiver of arbitration to two situations where a party insisting on arbitration either (1) resorted to judicial remedies, or (2) allowed a significant period of time to elapse before demanding arbitration.
Courts in Louisiana have found waiver of arbitration only in extreme cases. Waiver of arbitration is not a favored finding and there is a presumption against it. A party asserting waiver bears a heavy burden of proof to show that the opponent has waived a right to arbitrate, and there is a strong policy in Louisiana favoring arbitration when it has been agreed to by the parties. To find a waiver, Louisiana courts require a showing that the party demanding arbitration has meaningfully participated in court litigation proceeding so as to indicate its intention to litigate the dispute within that forum. Courts have been hesitant to draw a line in the sand as to how much litigation activity rises to the level of waiver, but one court has observed that the mere answering of a lawsuit does not equate to waiver.
Although findings of waiver here are rare, the cautious litigant should assert its rights to arbitrate clearly and early in any separate court litigation. Courts do seem willing to review the entire record, rather than to fault a party for a single step taken in court. Still, a party’s argument for arbitration weakens to the extent the party continues to litigate the arbitrable dispute within court proceedings.
* * *
As noted, this entire article is geared towards the rare scenarios in which a court will not enforce an arbitration provision. Although the issues described above do arise from time to time, typically, if the clause applies to the particular dispute, a court will force the parties to arbitrate rather than litigate.
 28 U.S.C. § 2 (2016); La. R.S. 9:4201 (2016).
 Dicorte v. Landrieu, 908 So. 2d 799, 801 (La. Ct. App. 4 Cir. 2008).
 Aguillard v. Auction Mgmt. Corp., 908 So. 2d 1, 17 (La. 2005).
 Rainey v. Entergy Gulf States, Inc., 35 So. 3d 215, 227 (La. 2010).
 Id. (citing Big ‘A’ Sand & Gravel Co. v. Bay Sand & Gravel Co., 282 So. 2d 837 (La. Ct. App. 1 Cir. 1963)).
 Hurley v. Fox, 520 So. 2d 467, 469 (La. Ct. App. 4 Cir. 1988) (“La. R.S. 9:4201 provides that if the agreement to arbitrate is in writing, it shall be valid, irrevocable and enforceable. The law does not provide that the agreement must be signed. We conclude, therefore, that if the agreement between the parties is written, the provisions of the statute are satisfied even though the writing is not signed by the parties.”).
 In re Succession of Taravella, 734 So. 2d 149, 151 (La. Ct. App. 5th Cir. 1999).
 Duhon v. Activelaf, LLC, 2016-0818 (La. 10/19/16), 2016 WL 6123820.
 See e.g., Easterling v. Royal Manufactured Housing, LLC, 963 So. 2d 399 (La. Ct. App. 3 Cir. 2007); Dufrene v. HBOS Mfg., LP, 872 So. 2d 1206 (La. Ct. App. 4 Cir. 2004).
 Duhon, 2016 WL 6123820.
 Lincoln Builders, Inc. v. Raintree Inv. Corp. Thirteen, 37,965 (La. Ct. App. 2 Cir. 1/28/04), 866 So. 2d 326, 331 (citing cases).
 Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756 (La. 1982).
 Lorusso v. Landrieu Enterprises, Inc., 02-2346 (La. App. 4 Cir. 5/21/03), 848 So.2d 656.
 Electrical & Instrumentation Unlimited, Inc. v. McDermott International, Inc., 627 So.2d 702 (La. Ct. App. 4 Cir.1993).
 Matthews-McCracken, 414 So.2d 756 (La. 1982).