Arbitration is meant to be an alternate to litigation. Yet arbitration is itself the subject of much litigation over who must arbitrate, what must be arbitrated, whether and how the arbitration should proceed, and the deference courts must show to arbitration awards. This blog is intended to be a resource for litigators, in-house counsel, arbitrators and anyone else who wants to stay on top of the many thorny issues that arise under the Federal Arbitration Act. Our Bloggers →

Latest Scope of Arbitration Agreement Posts
Fireworks2015

Arbitration Fireworks: Three Federal Circuits Refuse To Compel Arbitration

By Liz Kramer | July 2 2015

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate Three federal appellate courts recently affirmed lower courts' refusal to compel arbitration.  These cases show that the federal policy favoring arbitration is not absolute – the parties must have agreed to arbitrate the claims at issue and the defendant cannot have waived its right to arbitrate by engaging in...

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Fifth Circuit Finds Parties Can Authorize Arbitrators By Their Conduct

By Liz Kramer | May 12 2015

Appealing Arbitration Decisions, Litigation vs. Arbitration, Scope of Arbitration Agreement The Fifth Circuit un-vacated an arbitration award last week, holding the district court had wrongly concluded that the court was the proper decision-maker on contract formation.  Although courts are presumptively authorized to decide whether an arbitration agreement exists, the Fifth Circuit found the parties...

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When Can A Party Recover Attorneys’ Fees Incurred Confirming An Arbitration Award?

By Liz Kramer | May 7 2015

Appealing Arbitration Decisions, Litigation vs. Arbitration, Scope of Arbitration Agreement If you won your arbitration, it is vexing to have to spend many thousands more in attorneys' fees opposing a motion to vacate the arbitration award.  (That is especially true if you signed up for arbitration thinking it was faster and avoided appeals.)  But, can you ask the court to award you the attorneys' fees...

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6th Circuit Holds that Accountants Conducting Financial Arbitration Can Also Make Legal Determinations

By Liz Kramer | April 8 2015

Scope of Arbitration Agreement, Waiver of Right to Arbitrate A new case from the Sixth Circuit addresses whether accountants who are resolving a dispute about payments made under an agreement can also make legal determinations about the same agreement. In a 2-1 decision, the Sixth Circuit held that the scope of the dispute clause is broad enough to allow the accountants...

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Rare Claim Falls Outside Arbitration Agreement, Creates Piecemeal Litigation

By Liz Kramer | February 6 2015

Scope of Arbitration Agreement Because of the strong federal policy favoring arbitration, and cases providing that any doubt about the scope of an arbitration agreement must be resolved in favor of arbitration, it is uncommon to find a decision holding that the parties' claims are not within the scope of their arbitration agreement.  But, the...

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ArbitrationNation’s Third Anniversary Threesome

By Liz Kramer | August 14 2014

Arbitration Rules/Procedures, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate This week marks the third anniversary of this blog devoted to interpretations of the Federal Arbitration Act.  (Here's the first post.)  After 155 posts, can there possibly be more to say?  Yes, indeed.  Three new opinions from federal courts of appeals demonstrate how new issues keep "cropping" up in arbitration...

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Appellate Courts Saving Arbitration Agreements Right and Left

By Liz Kramer | July 9 2014

Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate In recent weeks, four federal and state appellate courts have vacated district court decisions that denied motions to compel arbitration.  The courts seem to be saying to defendants with arbitration agreements: don't worry if you lose in the trial court, we will be your Tim Howard and save you from the gaping jaws...

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MedicalDevice

Two Federal Circuits Find Health Insurance Claims Outside Scope of Arbitration Clauses

By Liz Kramer | May 9 2014

Scope of Arbitration Agreement, Uncategorized Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don't usually get to write about courts finding that a dispute falls outside the scope of arbitrable claims. ...

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Checkbook

No Federal Presumption of Arbitrability Until Court Finds Valid Arbitration Agreement

By Liz Kramer | February 12 2014

Litigation vs. Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement A new opinion from the Eleventh Circuit highlights an issue that can be confusing to those encountering FAA case law for the first time: when does the federal presumption of arbitrability apply?  The answer is the presumption only applies to whether the scope of an arbitration agreement is broad enough to encompass...

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Ninth Circuit Says Arbitration Agreements Cannot Restrict Grounds for Vacating Award

By Liz Kramer | December 18 2013

Appealing Arbitration Decisions, Scope of Arbitration Agreement In the Hall Street decision in 2008, SCOTUS held that parties could not contractually enlarge Section 10 of the Federal Arbitration Act by agreeing that a court could vacate the arbitration award for reasons not found in that section.  This week, the Ninth Circuit held that parties also cannot contractually...

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