What a Contract Has Joined Together Let No Court Cast Asunder: Abolishing Separability and Codifying the Scope of the Provisions of Arbitration Agreements

36 Pages Posted: 14 Mar 2017  

Taylor Payne

Ohio Northern University, Pettit College of Law, Students

Richard A. Bales

Ohio Northern University - Pettit College of Law

Date Written: March 10, 2017

Abstract

The doctrine of separability states that a contract containing an arbitration agreement is “separable” from the arbitration agreement such that the arbitration agreement is enforceable even if terms of the “container” contract would otherwise make the entire contract unenforceable. However, the federal circuits are split on how to apply this doctrine when terms of the arbitration agreement itself are unenforceable. Circuits that follow the Severance Approach sever unenforceable provisions from arbitration agreements and enforce the remainder of the arbitration agreement. Circuits that follow the Stand or Fall Together Approach void arbitration agreements with unenforceable provisions and enforce the container contract without the arbitration agreement.

This article argues that Congress should abolish the separability doctrine and amend the Federal Arbitration Act to render specific types of arbitration agreement provisions as void ab initio. Codifying certain types of provisions as void ab initio would make those types of provisions unenforceable as a matter of law. This proposal would reduce litigation over unenforceable provisions, create easily applicable rules for drafting arbitration agreements, settle expectations, and allow parties to a contract to utilize all contract defenses.

Suggested Citation

Payne, Taylor and Bales, Richard A., What a Contract Has Joined Together Let No Court Cast Asunder: Abolishing Separability and Codifying the Scope of the Provisions of Arbitration Agreements (March 10, 2017). West Virginia Law Review, Vol. 120, 2017. Available at SSRN: https://ssrn.com/abstract=2931171

Taylor Payne

Ohio Northern University, Pettit College of Law, Students ( email )

525 South Main Street
Ada, OH 45801
United States

Richard A. Bales (Contact Author)

Ohio Northern University - Pettit College of Law ( email )

525 South Main Street
Ada, OH 45810
United States
419-772-2205 (Phone)

HOME PAGE: http://law.onu.edu/node/3073

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