specially concurring:
Relying on Aste v. Metropolitan Life Insurance Co., 312 Ill. App. 3d 972 (2000), and Kaplan v. Tabb Associates, Inc., 276 Ill. App. 3d 320 (1995), plaintiffs contend that Illinois law requires the court to first determine whether the entire contract at issue is void and unenforceable before referring the matter to an arbitrator. Based only on the concessions of the plaintiffs in this case and the language of this specific agreement, now subject to our review, I specially concur. However, I recognize that the outcome of this decision may be inconsistent with the First District cases previously decided, but our decision is entirely consistent with the United States Supreme Court’s holding in Preston v. Ferrer, 552 U.S. 346 (2008).
It is important to remember that plaintiffs concede that interstate commerce is involved in this case and agrees the parties contemplated their contractual disputes would be resolved by an arbitration process.1 In my view, these concessions are significant.
When the parties dispute whether an arbitration clause or separate arbitration agreement was contemplated by the parties to become part of their agreement, then under Illinois law, the court must first decide if the parties actually agreed to resolve disputes by means of arbitration. Donaldson, Lufkin, & Jenrette Futures, Inc. v. Barr, 124 Ill. 2d 435, 443-45 (1988). Such is not the case here. In this case, plaintiffs concede the arbitration clause was the subject of a meeting of the minds. Instead, the issue before us is whether the arbitration clause and the contract, which the parties drafted, now require the court or the arbitrator to decide whether plaintiffs’ contention that the contract was void, based on State law, has merit.
The contract at the heart of this appeal contains explicit language agreeing that the arbitration process would be controlled by the rules of the American Arbitration Association (AAA). Significantly, when the rules of the AAA are incorporated into a contract, as they were in this case, those same rules mandate that the parties to this contract “shall be deemed to have made these rules [of the AAA] a part of their arbitration agreement.” American Arbitration Ass’n, Commercial Arbitration Rules, R — 1(a) (eff. June 1, 2009). Thus, I find it very difficult to accept plaintiffs’ claim that the parties to this appeal agreed to arbitrate in accordance with Illinois law.
Further, the AAA rules, agreed to by plaintiffs, grant the arbitrator “the power to determine the existence or validity of a contract of which an arbitration clause forms a part.” American Arbitration Ass’n, Commercial Arbitration Rules, R — 7(b). These AAA rules, not state or federal law, require the arbitrator to separately consider the arbitration clause from other provisions of this contract. Also according to these rules, the arbitrator is given the authority to determine whether the contract is void and if so, then determine the continued validity of the arbitration clause. American Arbitration Ass’n, Commercial Arbitration Rules, R — 7(b).
The contract in this case provides not only that the arbitration process would be controlled by the AAA rules, but also that the proceedings would take place in Chicago. Obviously, based upon the contractual language at issue, we could not require the parties to travel to Peoria rather than Chicago for the arbitration hearing. Similarly, we cannot allow the court to first examine whether the contract in this case is void when the rules of the AAA, selected by the parties, require the arbitrator to first make this determination. In this appeal, we do not have a contract which is silent regarding whether the arbitration process will be governed by guidelines consistent with the Federal Arbitration Act (FAA) or will be governed by rules that may differ from the FAA.
Consequently, I respectfully suggest that we need not engage in a lengthy discussion explaining the relationship of the Illinois Arbitration Act to the FAA in order to resolve this appeal. Although, I agree with the majority’s analysis of the case law as discussed, I write separately to emphasize that the trial court, and now this court, have simply upheld the explicit contractual choices incorporated by the parties to this contract which provide the blueprint for the course of their dispute resolution. Here, as part of their contract, the parties specifically agreed that all disputes would be resolved through arbitration and, in turn, also agreed their arbitration proceedings would be controlled by the rules of the AAA.
For these reasons, I specially concur.
These circumstances are distinguishable from those considered by this court in Peterson v. Residential Alternatives of Illinois, Inc., 402 Ill. App. 3d 240 (2010). In Peterson, the primary issue was whether the parties agreed to arbitration at all. The parties in that case signed two separate agreements, which included an inartful attempt to create a separate arbitration agreement. This court found that neither contract signed by the parties referred to the other contract and, therefore, after examining both agreements separately, we concluded an agreement to arbitrate the nursing home health care contract was neither contemplated by nor agreed upon by both parties.