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When two parties disagree whether an arbitration agreement is binding, the party seeking to compel arbitration does not need to wait for the other party to bring a suit against them in court to file a motion. Rather, they can file a petition (or complaint) in court to compel arbitration to preempt any lawsuit.
What is the procedure of filing a complaint / petition (not a motion) to compel arbitration in Special Civil court in NJ?
You would appoint an arbitrator is accordance with the clause and they would decide if they have jurisdiction under the competence-competence procedure.
So, for example, if the clause identifies the arbitrator or the person who can nominate the arbitrator, you would simply approach that person and ask them to act.
If the clause did not provide a mechanism for appointing the arbitrator and the parties could not agree on how to do it, then the court would need to be engaged to do so.
The filing is no different from any other application for relief. However, it is imports that you ensure the court has jurisdiction to issue the appropriate order appointing an arbitrator. Unless the arbitration clause was clearly invalid on its face, the court would leave it to the arbitrator to decide if they have jurisdiction.
