Is the arbitration clause in our Kansas contract enforceable?
Yes, on ordinary contract grounds. Which act applies turns on a date: K.S.A. 5-423 through 5-453 "govern an agreement to arbitrate made on or after July 1, 2018", and govern an agreement made before that date only "if all parties to the agreement or to the arbitration proceeding so agree in the record" (K.S.A. 5-425), so a clause in an older contract is not governed by the sections below unless everyone agrees on the record that it is. An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties is valid, enforceable and irrevocable, except upon a ground that exists at law or in equity for the revocation of a contract (K.S.A. 5-428(a)). The court decides whether an agreement to arbitrate exists or whether a controversy is subject to one; the arbitrator decides whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable (K.S.A. 5-428(b)-(c)). If a party to a judicial proceeding challenges the existence of, or claims a controversy is not subject to, an agreement to arbitrate, the arbitration may continue pending the court's resolution unless the court orders otherwise (subsection (d)).
The trap
The Kansas act fixes what the clause may not do before a dispute arises. The baseline is freedom: "Except as otherwise provided in subsections (b) and (c), a party to an agreement to arbitrate or to an arbitration proceeding may waive or the parties may vary the effect of, the requirements of K.S.A. 5-423 through 5-453, and amendments thereto, to the extent permitted by law" (K.S.A. 5-426(a)), so everything below is the exception, and the two lists are the whole of it. Under K.S.A. 5-426(b), before a controversy arises a party may not waive or agree to vary the effect of the requirements of K.S.A. 5-427(a), 5-428(a), 5-430, 5-439(a) or (b), 5-448 or 5-450; may not agree to unreasonably restrict the right to notice of the initiation of an arbitration proceeding, or the right to disclosure of facts by a neutral arbitrator; and may not waive the right to be represented by a lawyer at a proceeding under the act, except that an employer and a labor organization may waive lawyer representation in a labor arbitration. K.S.A. 5-426(c) makes a further list non-variable at any time: that section itself, and the sections on when the act applies, the motion to compel or stay arbitration, arbitrator immunity, judicial enforcement of a pre-award ruling, two subsections on change of an award by the arbitrator, confirmation of an award, vacating an award, modification or correction of an award, two subsections on judgment and fees, uniformity of construction, the relationship to the federal electronic signatures act, and the savings clause. Note where the judicial-relief section sits: K.S.A. 5-427(a) is in the pre-dispute list in subsection (b), not in this one. So the negotiable part of a Kansas arbitration clause is narrower than the parties' freedom of contract elsewhere.
9 authorities
- statuteK.S.A. 5-428enactment date not established
The words that state the rule
An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable, except upon a ground that exists at law or in equity for the revocation of a contract.
- statuteK.S.A. 5-428enactment date not established
The words that state the rule
The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. (c) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.
- statuteK.S.A. 5-426enactment date not established
The words that state the rule
Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not: (1) Waive or agree to vary the effect of the requirements of K.S.A. 5-427(a), 5-428(a), 5-430, 5-439(a) or (b), 5-448 or 5-450, and amendments thereto;
- statuteK.S.A. 5-426enactment date not established
The words that state the rule
waive the right under K.S.A. 5-438, and amendments thereto, of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under K.S.A. 5-423 through 5-453, and amendments thereto, but an employer and a labor organization may waive the right to representation by a lawyer in a labor arbitration.
- statuteK.S.A. 5-426enactment date not established
The words that state the rule
A party to an agreement to arbitrate or arbitration proceeding may not waive, or the parties may not vary the effect of, the requirements of this section or K.S.A. 5-425, 5-429, 5-436, 5-440, 5-442(d) or (e), 5-444, 5-445, 5-446, 5-447(a) or (b), 5-451, 5-452 or 5-453, and amendments thereto.
- statuteK.S.A. 5-428enactment date not established
The words that state the rule
(d) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue, pending final resolution of the issue by the court, unless the court otherwise orders.
- statuteK.S.A. 5-426enactment date not established
The words that state the rule
(2) agree to unreasonably restrict the right under K.S.A. 5-431, and amendments thereto, to notice of the initiation of an arbitration proceeding; (3) agree to unreasonably restrict the right under K.S.A. 5-434, and amendments thereto, to disclosure of any facts by a neutral arbitrator; or
- statuteK.S.A. 5-426enactment date not established
The words that state the rule
Except as otherwise provided in subsections (b) and (c), a party to an agreement to arbitrate or to an arbitration proceeding may waive or the parties may vary the effect of, the requirements of K.S.A. 5-423 through 5-453, and amendments thereto, to the extent permitted by law.
- statuteK.S.A. 5-425enactment date not established
The words that state the rule
(a) K.S.A. 5-423 through 5-453, and amendments thereto, govern an agreement to arbitrate made on or after July 1, 2018. (b) K.S.A. 5-423 through 5-453, and amendments thereto, govern an agreement to arbitrate made before July 1, 2018, if all parties to the agreement or to the arbitration proceeding so agree in the record.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.