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
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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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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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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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Courts Stopping Non-Signatories From Compelling Arbitration Through Equitable Estoppel

By Liz Kramer | October 17 2013

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement Now that we know the Supreme Court is not going to be addressing non-signatories' ability to compel arbitration this term (at least not in the Toyota case), we can take a moment to look at what lower courts are doing with that issue.   In short, the trend is for courts to clarify that it is very difficult...

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The Next Frontier of Arbitration Litigation: Lessons From State Courts

By Liz Kramer | August 19 2013

Appealing Arbitration Decisions, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate, Year In Review After reading more than 40 decisions about arbitration from state high courts, issued just in the past eight months, I have two bits of wisdom to share.  First, that is not the best way to spend your summer vacation, even for a devoted arbitration nerd.  And second, there are arbitration issues percolating in...

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The Relationship Is Governed By Multiple Agreements And Not All Require Arbitration; Must You Arbitrate?

By Liz Kramer | May 23 2013

Scope of Arbitration Agreement In the past few months, two federal appellate courts have had to determine whether parties were bound to arbitrate claims that arose from relationships governed by multiple agreements, only some of which called for arbitration.  While the courts reached different conclusions based on the facts, they both relied on...

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Authority To Enter Into Contract Is Issue For Courts, Not Arbitrators

By Liz Kramer | February 21 2013

Litigation vs. Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement The Third Circuit just issued a decision that tries to divine the dividing line between challenges to the formation of contracts containing arbitration clauses (which are presumptively for courts), and challenges to the validity of contracts containing arbitration clauses (which are presumptively for arbitrators, if...

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Prius Owners Put the Brakes On Arbitration With Non-Signatory Toyota

By Liz Kramer | February 1 2013

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate The Ninth Circuit ruled this week that a class of car owners could pursue their court claims against the manufacturer, Toyota, for product defects and false advertising, despite the existence of an arbitration agreement in each of the owners' purchase agreements with the car dealerships.  The court held that Toyota...

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