These defenses can be invoked, if applicable, after the
movant for arbitration has discharged its burden to show that an arbitration
agreement exists. The most basic defense of a party seeking to avoid arbitration,
by contrast, involves contract-formation, i.e. the contention that an agreement
to arbitrate was never reached in the first place and that there is accordingly no valid
and enforceable arbitration agreement.
AFFIRMATIVE DEFENSES TO ARBITRATION
If the party seeking arbitration carries its initial burden,
then the burden shifts to the party opposing arbitration to present evidence on
an affirmative defense to the arbitration agreement. J.M. Davidson, Inc. v.
Webster, 128 S.W.3d 223, 227 (Tex. 2003). In the context of enforcement of an
arbitration agreement, defenses refer to unconscionability, duress, fraudulent
inducement, and revocation. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756
(Tex. 2001). Because the law favors arbitration, the burden of proving a
defense to arbitration is on the party opposing it. See J.M. Davidson, Inc.,
128 S.W.3d at 227.
SOURCE: EL PASO COURT
OF APPEALS - No. 08-11-00091-CV – 4/25/2012
[Employee-Plaintiff] has not offered evidence as to any of
the applicable affirmative defenses. Her only claims related to issues of
arbitrability which we have already determined must be presented to the
arbitrator. We conclude that the trial court erred in refusing to compel
arbitration. We sustain both issues for review and reverse and remand for
orders compelling arbitration.
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