Also known as: null and void · inoperative · incapable of being performed · invalid · unenforceable
Written by attorneys · grounded in primary & secondary sources — see below
A contractual defense available under the New York Convention that prevents a court from referring parties to arbitration. The defense applies when the arbitration agreement suffers from a fundamental defect that renders enforcement impossible or contrary to public policy.
Nathaniel Newman signed a mortgage with Norton Bank that referenced an arbitration clause for disputes over the underlying debt. The debt itself had already been discharged in bankruptcy before the mortgage was recorded. When the bank sought to compel arbitration, the court refused because the arbitration agreement was null and void given the absence of any valid underlying obligation.
Noreen Nguyen entered an oral five-year lease with Nexus Technologies for commercial space. When a dispute arose, Nexus moved to compel arbitration under a clause in the unsigned lease. The court declined because the agreement was inoperative under the statute of frauds and no possession or rent payments had occurred to create an enforceable tenancy.
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Naomi Norton signed a waiver with Nobel Dynamics releasing the company from liability for reckless conduct during a training exercise. After an injury, she sued and Nobel sought arbitration under the waiver. The court held the arbitration clause incapable of being performed because the express assumption of risk violated public policy.
Nina Nielsen purchased land subject to a zoning ordinance that Nobel Dynamics challenged as a taking. The parties had included an arbitration clause in their development contract. The court refused to compel arbitration because the clause was null and void when the underlying zoning restriction lacked any relation to public welfare.
Nathan Nguyen and Neville Norton executed a premarital agreement containing an arbitration clause. Nathan later proved he signed under duress without independent counsel. When Neville sought to compel arbitration of a divorce dispute, the court found the agreement inoperative because the consent defect rendered the entire clause unenforceable.
Northern Manufacturing's will devised assets to a revocable trust that included an arbitration clause for disputes among beneficiaries. The trust was revoked before the testator's death. When a beneficiary moved to compel arbitration, the court held the clause incapable of being performed because the underlying trust no longer existed.
The phrase covers the full range of contract defenses that render an arbitration agreement unenforceable, including lack of consent, public policy violations, and impossibility. Courts apply it only to the arbitration agreement itself rather than to the merits of the underlying dispute.
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No. The defense is limited to cases where the arbitration agreement itself is defective. A dispute over whether a particular claim falls within the clause does not trigger the null-and-void exception.
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No. The separability doctrine treats the arbitration clause as independent. The defense applies only when the arbitration agreement itself, not merely the container contract, is null and void, inoperative, or incapable of being performed.
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…Baker v. Nelson must be and now is overruled, and the State laws challenged by the petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Pp. 18–23. (1) The fundamental liberties protected by the…