Arbitration and Arbitrability: Toward an Expectation Model
53 Pages Posted: 21 May 2007
The process of arbitration has been transformed by a series of Supreme Court decisions that have increased the enforceability of arbitration awards. Beyond that, the Supreme Court has also taken steps to ensure the enforceability of promises to arbitrate. These latter arbitrability issues raise questions as to who will decide whether an enforceable agreement to arbitrate has been made and what standard shall be applied in making that determination. This article explores the arbitrability question in the wide variety of settings in which it occurs, including post-contract disputes, successor parties, and the separability doctrine which focuses on challenges to the entire contract containing the arbitration provision. Also explored are the differing standards used to determine whether a substantive dispute is arbitrable on the merits and whether procedural preconditions to arbitration have been satisfied. This article identifies an expectation model as the premise upon which the Supreme Court's arbitrability principles have been based, and argues that it appropriately focuses on logical inferences of the parties' intent arising from their agreement as the basis for resolving arbitrability disputes. Reprinted with the permission of the Baylor Law Review.
Keywords: Arbitrate, Arbitration, Arbitrability, Agreement to arbitrate, Arbitration agreement, Enforcement, Enforceability, Enforceable, Post-contract dispute, Procedural preconditions, Expectation, Contract, Successor
JEL Classification: D74, J52, K31
Suggested Citation: Suggested Citation