concurring in part, dissenting in part. The majority reverses and remands this case for a determination by the circuit court of, first, whether Helton participated in the arbitration proceeding and, second, whether he agreed to arbitrate. I agree with the majority that the trial court erred in granting summary judgment in this case because there is a genuine issue of fact regarding whether Helton entered into an agreement with MBNA to arbitrate disputes. See Danner v. MBNA Am. Bank, N.A., 369 Ark. 435, 255 S.W.3d 863 (2007). Thus, I join the majority in reversing and remanding this matter for a determination by the circuit court of whether the parties had an agreement to arbitrate. However, I dissent, in part, because I do not agree with the majority that Helton’s participation in the arbitration proceeding (if he did participate) precludes the circuit court’s review of the question of arbitrability. Thus, whether Helton participated in the arbitration proceeding is not an issue that I would direct the circuit court to address upon remand. Because MBNA America Bank, N.A. v. Gilbert, 100 Ark. App. 221, 266 S.W.3d 229 (2007), holds that participation in an arbitration proceeding, in any form, precludes a circuit court’s review of the question of arbitrability if a timely motion to vacate, modify, or correct the award is not made pursuant to 9 U.S.C. § 12, I would overrule Gilbert.
The majority suggests that this case does not present the opportunity to overrule Gilbert because the issue of whether Helton participated in the arbitration proceedings remains in dispute and because Helton has not asked this court to consider the validity of the Gilbert holding. I strongly disagree. Helton’s request that this court reverse the circuit court’s ruling under Danner because there is a genuine issue of material fact regarding whether the parties entered into an agreement to arbitrate necessarily requires overruling Gilbert. Gilbert modified Danner by precluding review of arbitrability if the adverse party “participated” in the arbitration. Thus, under Gilbert, we cannot reverse this case pursuant to Danner without a determination of whether Helton participated. The Gilbert court did not determine to what extent Gilbert participated but, after reviewing the arbitration award stating that Gilbert “filed a response with the Forum and served it on the Claimant” and “Parties have had the opportunity to present all evidence and information to the Arbitrator” — both of which findings also appear in Helton’s arbitration award — the court reasoned that “[w]hile Gilbert’s response is not in the record, it is apparent that he did participate in the arbitration, at least to the extent that he was on notice of the proceeding.” Gilbert, 100 Ark. App. at 225—26, 266 S.W.3d at 232. Likewise, in this case, Helton’s own affidavit suggests that he was on notice of the arbitration proceeding. In my view, the reasoning in Danner does not allow for the “participation” exception created by Gilbert; participation in the arbitration does not preclude a circuit court’s review of arbitrability; and thus Gilbert’s holding to the contrary must be overruled.
Arbitration is a matter of contract between the parties; there is no general legal duty to arbitrate private contractual disputes. On this premise, the United States Supreme Court held that the question of whether a party has agreed to arbitrate is subject to independent review by the courts. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995) (reasoning that “[arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes — but only those disputes — that the parties have agreed to submit to arbitration”). The Federal Arbitration Act merely provides a forum in which private disputes may be resolved where the parties have agreed to use such a forum. See MCI Telecomms. Corp, 138 F.3d at 429. However, these FAA provisions “do not come into play unless there is a written agreement to arbitrate. ... If there is no such agreement, the actions of the arbitrator have no legal validity.” Danner, 369 Ark. at 441, 255 S.W.3d at 868 (quoting MCI Telecomms. Corp, 138 F.3d at 430).
Danner, continuing to quote MCI, explained the effect of an adverse ruling by the circuit court on the issue of arbitrability on a party who had not participated in the arbitration: “Of course, if a court later determines that an arbitration agreement was in effect, and that the non-appearing party was bound by its conditions, the FAA would then fully come into operation, including the time limitations of section 12.” Id. (emphasis added). Thus, if on remand the circuit court in Danner determined that there was an agreement to arbitrate, Danner would be bound by the time limits imposed by 9 U.S.C. § 12 and unable to appeal the merits in spite of her failure to participate in the arbitration proceeding. Likewise, a party who participated in litigation of the merits at the arbitration proceeding would also be bound by the procedural requirements of the FAA if a circuit court later determined that there was an agreement to arbitrate. However, in my view, this does not bar either party — that is, one who did not participate in the arbitration proceeding or one who did participate in the arbitration proceeding — from having independent review of the question of arbitrability in the circuit court. The actions of the arbitrator in the arbitration proceeding, including its award, have no legal validity “unless there is a written agreement to arbitrate.” Id. at 441, 255 S.W.3d at 868.
While Danner did not file a response or otherwise participate in the arbitration proceeding and this non-participation was mentioned in Danner and in Danner’s quotation from MCI, neither the court’s reasoning nor its holding depended upon Danner’s non-participation: “We agree with the MCI court’s conclusion that the time limit imposed by 9 U.S.C. § 12 is not triggered unless there is a written agreement to arbitrate.” Id. at 441, 255 S.W.3d at 868 (emphasis added). The Supreme Court has held that the question of arbitrability is subject to independent review by the courts. See First Options, 514 U.S. at 947. Accordingly, I would overrule Gilbert to the extent it holds that the time limits of 9 U.S.C. § 12 are triggered, regardless of whether there is a written agreement to arbitrate, if a party “participated” in the arbitration proceeding.
I am authorized to state that Chief Judge Pittman joins in this opinion.