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Consent has long been the foundation of arbitration, giving the process legitimacy and informing decisions about its nature and structure. The Supreme Court has consistently required consent as a precondition for compelling arbitration. However, it remains unclear what actions constitute consent. In First Options v. Kaplan,1 the Supreme Court held that courts should apply state contract law to determine whether an arbitral clause exists, but “added an important qualification” that “[c]ourts should not assume that the parties have agreed to arbitrate unless there is clear and unmistakable evidence that they did so.”2 In the wake of First Options, the courts of appeals have compelled arbitration by non-signatories, applying both state contract law and the pro-arbitration mandate of the Federal Arbitration Act (“FAA”).3 This trend of compelling arbitration by non-signatories4 is in tension with the traditional notion that arbitration should be based upon direct consent by the parties. The Supreme Court had historically refused to grant certiorari to resolve this conflict.5 *290 In its 2002 term, the Court accepted its first case, EEOC v. Waffle House,6 that directly addressed when a non-signatory may be required to arbitrate. The Court held that if a non-party has not consented to arbitration, it could not be compelled to arbitrate its claim. The holding reinforced First Options and clarified that its protections reach non-parties, which was consistent with the Court’s tendency toward a strict construction of consent for determinations of arbitrability. Nonetheless, the Court’s minimal attention to the issue in Waffle House may not have provided sufficient guidance to judges attempting to reconcile the federal pro-arbitration policy, the application of contractual theory, and the consent requirement. As a result, lower courts could conceivably continue to compel arbitration by relying on state contract law even in the absence of real consent, thereby contravening the most fundamental principle of arbitration. Part I of this Note describes the facts, procedural history and holding of Waffle House. Part II then explores the current non-signatory jurisprudence through an examination of the five state law bases for compelling arbitration by a non-signatory. Part III assesses the relative merits of opposing arguments about whether Waffle House has or has not precluded these theories for requiring non-signatories to arbitrate. Part IV concludes that the court has limited, but not completely precluded, the expansion of binding arbitration to non-signatories.


Contracts, arbitration, Supreme Court of the United States, SCOTUS employment law

Publication Title

Harvard Negotiation Law Review

Publication Citation

8 Harv. Negot. L. Rev. 289 (2003)