Who Decides Who Decides? – The Turf War Continues
This post has been viewed 3,793 times.
When you see me in the street, you can tell that I’m a pro-arbitration kind of guy. I wear my FAA hoodie, usually with the hood down, the better for you to admire my snowy white hair and furrowed, gravitas-laden brow. So when a US Court of Appeals takes a swing at arbitration, my instinct is to swing back. Fifth Circuit, take this 🤜. (As a response to the decision here discussed, Archer & White Sales, Inc. v. Henry Schein, Inc., 2019 WL 3812352 (5th Cir. Aug. 14, 2019)).
Actually, the Fifth Circuit got punched already this year for being anti-arbitration, by a heavyweight champ called the Supreme Court of the United States. In Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019), the Supreme Court in a unanimous decision abrogated the Fifth Circuit’s rule that if a motion to compel arbitration is “wholly groundless,” the district court when presented with a motion to compel arbitration may decide arbitrability itself, and deny the motion, even though there is an otherwise valid and legally sufficient contractual delegation of arbitrability issues to the arbitrator. In essence, the Court held that the “wholly groundless” exception was wholly groundless, and inconsistent with the Federal Arbitration Act, because its underlying premise was that arbitrators (a very mercenary bunch) cannot be trusted to resist arbitrating disputes that clearly were agreed to be litigated.
Read original articleTags:
