”[W]here a party alleges that the arbitration provision was unconscionable or was thrust upon him because he was unwary and taken advantage of, or that the contract was one of adhesion, the question of whether an arbitration provision was bargained for and valid is a matter of law for the court to determine by reference to the entire contract, the nature of the contracting parties, and the nature of the undertakings covered by the contract.”
How later courts described this case
- ”[W]here a party alleges that the arbitration provision was unconscionable or was thrust upon him because he was unwary and taken advantage of, or that the contract was one of adhesion, the question of whether an arbitration provision was bargained for and valid is a matter of law for the court to determine by reference to the entire contract, the nature of the contracting parties, and the nature of the undertakings covered by the contract.”
- “Where parties to a contract agree to arbitrate either all disputes, or particular limited disputes arising under the contract, and where the parties bargained for the arbitration provision, such provision is binding, and specifically enforceable, and all causes of action arising under the contract which by the contract terms are made arbitrable are merged, in the absence of fraud, into the award of the arbitrators.”
- describing the purpose of arbitration as “just, speedy, economical conflict resolution”
Written by the judges who cited it.
The opinion
*495 Miller, Justice,
concurring:
If, as the majority intones, litigation is a poor way to resolve controversies as it is expensive and time consuming, what must the parties to this arbitration case think as to the efficacy of arbitration in the context of the two years and two appeals to this Court?
The issue before us was simple: whether the arbitration award could be enforced in the original declaratory judgment action, which proceeding is more fully outlined in Board of Education of County of Berkeley v. W. Harley Miller, Inc., _ W. Va. _, 221 S.E.2d 882 (1975).
This is an uncomplicated procedural question relating to how one can enforce an arbitration award. As our first decision in this case pointed out, the arbitration did not arise under the arbitration statute, W. Va. Code, 55-10-1, but rested on the private contractual agreement of the parties.
This Court clearly stated in Hughes v. National Fuel Company, 121 W. Va. 392 , 3 S.E.2d 621 (1939), that in order to enforce a common law award of arbitration, it is necessary to bring an action based upon the award.
The only question remaining to be answered here was whether the contractor, W. Harley Miller, Inc., which had obtained the award, could enforce it in the existing declaratory judgment action or whether it was required to file a new suit.
Rule 15 of the W. Va. Rules of Civil Procedure accords great liberality to amended and supplemental pleadings. In Nellas v. Loucas, __ W. Va. _, 191 S.E.2d 160 (1972), and Rosier v. Garron, Inc., _ W. Va. _, 199 S.E.2d 50 (1973), we rejected any rigid test for amendment to pleadings in terms of whether the cause of action has been changed and in lieu thereof stated in Syllabus Point 3, Rosier v. Garron, Inc., supra:
“The purpose of the words ‘and leave [to amend] shall be freely given when justice so requires’ in Rule 15(a) W.Va. R.Civ.P., is to secure an adjudication on the merits of the controversy *496 as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits the presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet the issue.”
Clearly, the lower court under Rule 15 had jurisdiction to admit an amended claim to enforce the arbitration award.
Based upon the theory that the only issue in the present case was the procedural question of how an arbitration award can be enforced in the courts, I consider the bulk of the majority opinion to be mere dicta. The reference to “animal law” is not only inapt, but completely extraneous to any issue in the case.
Finally, I object to the use of federal labor cases involving arbitration as precedent in the area of commercial arbitration. In United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564 , 4 L. Ed. 2d 1403 , 80 S. Ct. 1343 (1960), the foundation of the federal labor arbitration law was based on Section 203(d) of the Labor Management Relations Act, 1947, 61 Stat. 153 , 29 U.S.C. §173 (d), which established labor arbitration as a favored policy for resolution of grievances.
One has only to read the dissenting opinion in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 , 4 L. Ed. 2d 1409 , 80 S. Ct. 1347 (1960), to sense the distress at the majority’s failure to apply commercial arbitration law principles to labor arbitration, although the majority had taken considerable pains to demonstrate the difference between these two concepts of arbitration:
“Courts and arbitration in the context of most commercial contracts are resorted to because there has been a breakdown in the working relationship of the parties; such resort is the un *497 wanted exception. But the grievance machinery under a collective bargaining agreement' is at the very heart of the system of industrial self-government.” [363 U.S. at 581]
Regrettably the majority of this Court, by entwining labor arbitration cases with commercial arbitration cases, ignores Justice Cardozo’s admonition in Lowden v. Northwestern Bank & Trust Co., 298 U.S. 160, 165 , 80 L. Ed. 1114 , 56 S. Ct. 696 (1936):
“When things are called by the same name it is easy for the mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity of meaning.”
I am authorized to state that Justice McGraw joins with me in this concurring opinion.