If you were thinking that an arbitration agreement needs to be signed in order to get an order compelling arbitration, your world may have been turned on its ear by the Order from the Business Court last week in Morton v. Ivey, McClellan, Gatton & Talcott, LLP, 2013 NCBC 23..
There’s certainly a fair amount of North Carolina authority that an arbitration agreement can’t be enforced if it was never signed (noted in ¶20 of the Order), but Judge Gale held that the Revised Uniform Arbitration Act relaxes this requirement.
The RUAA became effective in 2004, and provides that "[a]n agreement contained in a record to submit to arbitration . . . is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for revoking a contract." N.C. Gen. Stat. §1-569.6(a).
A "record" is defined by the Act as "information that is inscribed on a tangible medium." N.C. Gen. Stat. §1-569.1(6). The predecessor statute — the Uniform Arbitration Act — carried a more stringent standard. It said that "parties may agree in writing to submit to arbitration . . . or they may include in a written contract a provision for the settlement of arbitration of any controversy. . . . "
Even though the Plaintiffs had never signed the partnership agreement containing the arbitration provision, they had known of the agreement and taken a significant role in drafting it. Judge Gale found that:
the draft Partnership Agreement circulated by [one of the Plaintiffs] and assented to by [the Defendants], is a sufficient ‘record’ to satisfy the requirement of § 569.6(a) of the RUAA.
Congratulations to my partners Jeff Oleynik and John Ormand for pulling off this magic trick and getting the Order compelling arbitration. (And no, that’s not Jeff or John in the picture. Or their rabbit.)