Reference Guide Update: Affirmative Defenses/Exclusion

We occasionally receive questions asking if a disputed issue is a liability argument, damage dispute or exclusion to compulsory arbitration. To help clarify, we’ve updated page 32 (Chapter 17, Rule 2-4) in the Reference Guide. The update follows:

An affirmative defense/exclusion, on the other hand, is an argument that does not address the dispute itself (i.e., negligence or damages owed), but rather raises an objection to compulsory arbitration’s jurisdiction based on Article Second, Exclusions, of the arbitration agreements. Regardless of who is at fault or what damages are owed, the assertion of an affirmative defense/exclusion suggests the case cannot be heard because arbitration lacks jurisdiction over the matter. Affirmative defenses/exclusions include:
  • Items listed in Article Second of the various agreements, such as
    • Non-signatory party
    • Action does not exist in law or equity (includes no right of recovery or prior release)
    • Policy limits, etc.)
  • Rule infractions, such as
    • Filing a late counterclaim (Rule 2-2)
    • Failing to make reasonable accommodation for the inspection of an alleged defective product (Rule 2-11)