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The Businessperson’s Federal Arbitration Act FAQ Guide III: Pre-Award Litigation under Chapter 1 of the Federal Arbitration Act—Gateway Disputes about Whether Arbitration Should Proceed (Part II)

February 4th, 2020 Arbitrability, Arbitrability | Clear and Unmistakable Rule, Arbitrability | Existence of Arbitration Agreement, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Authority of Arbitrators, Businessperson's FAQ Guide to the Federal Arbitration Act, Enforcing Arbitration Agreements, FAA Chapter 1, FAA Preemption of State Law, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 2, Federal Arbitration Act Section 3, Federal Arbitration Act Section 4, Federal Policy in Favor of Arbitration, First Principle - Consent not Coercion, Gateway Disputes, Gateway Questions, McCarran-Ferguson Act, Moses Cone Principle, Practice and Procedure, Pre-Award Federal Arbitration Act Litigation, Presumption of Arbitrability, Procedural Arbitrability, Questions of Arbitrability, Small Business B-2-B Arbitration, Stay of Litigation, Substantive Arbitrability 2 Comments » By Philip J. Loree Jr.
gateway disputes

Gateway disputes, which concern whether parties are required to arbitrate a dispute on the merits, are the principal subject of pre-award Federal Arbitration Act litigation. In the last segment of this series, Gateway Disputes about Whether Arbitration Should Proceed (Part I), we answered a number of FAQs concerning gateway disputes, including who gets to decide those disputes:  

  1. What is the Difference between Pre-Award and Post-Award Litigation under the Federal Arbitration Act?
  2. What are Gateway Questions?
  3. Who Decides Gateway Questions?
  4. How do Parties Clearly and Unmistakably Agree to Submit Questions of Arbitrability to Arbitrators?
  5. Are there any Arbitrability Disputes that Courts Decide when the Contract at Issue Clearly and Unmistakably Provides for the Arbitrator to Decide Questions of Arbitrability?

Today we’ll answer some more FAQs about how gateway disputes are decided (or at least are supposed to be decided) by courts and arbitrators:

  1. What is the Presumption of Arbitrability?
  2. Does the Presumption of Arbitrability Apply to all Questions of Arbitrability?
  3. What Law Applies to Determine Gateway Disputes about Arbitrability to which the Presumption of Arbitrability does not Apply?
  4. How is Presumption of Arbitrability Applied to Resolve Gateway Questions about the Scope of an Arbitration Agreement?
  5. What Defenses, if any, Can Parties Assert against Enforcement of an Arbitration Agreement, and what Law Governs these Defenses?

The answers to these questions, along with the answers provided in Part I, will provide you with a solid foundation for understanding how pre-award Federal Arbitration Act litigation works and what to expect if your business is or becomes embroiled in it. The next segment will answer FAQs about the nuts and bolts of pre-award Federal Arbitration Act practice and procedure under Sections 2, 3, and 4 of the Act.

What is the Presumption of Arbitrability?

Back in 1983 the U.S. Supreme Court, in the landmark decision Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), famously declared that “[t]he [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” 

Moses Cone thus described what is known today as the FAA’s “presumption of arbitrability,” a presumption that about 23 years previously the Court had adopted in labor law arbitration cases (involving collective bargaining agreements between unions and employers) in federal labor law cases governed by Section 301 of the Labor Management Relations Act (sometimes referred to as the “Taft-Hartley Act”). See United Steel Workers of Am. v. Warrier & Gulf Nav. Co., 363 U.S. 574, 582-83 (1960) (“An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.”)

The presumption of arbitrability is not a talismanic solution to every arbitration-law- related problem. In fact it is designed to address a subset of arbitrability questions, those that concern the scope of an arbitration agreement itself. There are thus many gateway disputes to which the presumption does not apply.

The presumption has two related components. First, when courts construe the scope provision of an arbitration agreement to determine what merits-related issues the parties agreed to arbitrate, the court resolves ambiguities in favor of arbitration.  See, e.g., Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995). Second, it presumes that procedural issues arising out of arbitrable disputes, and contract-related defenses to arbitrability—that is, “allegation[s] of waiver, delay and like defenses to arbitrability[,]” are presumptively for the arbitrator. See Moses Cone, 460 U.S. at 24-25; Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002).

As we saw in Gateway Disputes about Whether Arbitration Should Proceed (Part I), procedural disputes growing out of an arbitrable dispute are gateway disputes that are not “questions of arbitrability” within the Howsam interpretive rule, and are thus presumptively for the arbitrator. Consequently, the second component of the presumption of arbitrability—that procedural disputes are presumptively for the arbitrator—can be a little confusing because under the Howsam interpretive rule, such gateway disputes are not supposed to raise “questions of arbitrability.”

To make matters worse, and as we also explained in Gateway Disputes about Whether Arbitration Should Proceed (Part I), courts sometimes use the term “substantive arbitrability” to refer to what Howsam calls “questions of arbitrability,” and use the term “procedural arbitrability,” to describe the the presumption that procedural matters are for the arbitrators. That is confusing because Howsam tells us that gateway disputes about procedural matters are not “questions of arbitrability.”

The confusion, however, is linguistic, perhaps resulting from a proliferation of legal labels that are not always precisely and consistently applied. The key is that the types of gateway disputes Howsam refers to as “questions of arbitrability” are, presumptively for the Court to decide, unless the parties clearly and unmistakably agree otherwise. Procedural disputes, including time limits (including statutes of limitation), and other conditions precedent to arbitration, are presumptively for the arbitrator to decide.

For our purposes, the most important component of the presumption of arbitrability is the first, that is, courts resolve ambiguities in favor of arbitration when construing an arbitration agreement’s scope provision. The second component, that procedural matters are presumed to be for the arbitrators, is subsumed within the Howsam interpretive rule, which defines which gateway disputes are “questions of arbitrability” and which are not. (See Gateway Disputes about Whether Arbitration Should Proceed (Part I).)

Does the Presumption of Arbitrability apply to all Questions of Arbitrability?

No. As discussed above, the presumption applies only to questions concerning the scope of the arbitration agreement itself. It does not apply to other questions of arbitrability, such as whether: (a) the dispute is capable of resolution by arbitration; (b) the arbitration agreement is valid and enforceable “upon upon such grounds as exist at law or in equity for the revocation of any contract[,]” 9 U.S.C. § 2; or (c) an arbitration agreement has been formed or concluded, that is, whether an arbitration agreement exists in the first place. See, e.g., Granite Rock Co. v. International Brotherhood of Teamsters, 130 S.Ct. 2847, 2859 (2010) (Thomas, J.) (presumption of arbitrability does not apply when a court is determining whether a valid and enforceable arbitration agreement exists).

Nor does it apply to the question whether the arbitration agreement is one governed by the FAA. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 537-38 (2019).

Before a court may “invoke its statutory powers under [FAA]  §§ 3 and 4 to stay litigation and compel arbitration according to a contract’s terms, a court must first know whether the contract itself falls within or beyond the boundaries of §§ 1 and 2.” 139 S. Ct. at 537.

There is no “presumption” or federal policy in favor of, or against, the FAA applying to a particular contract—whether it does or does not depends on whether the contract falls under Section 2 and is not exempt from the FAA under Section 1, something that simply requires a court to apply the terms of Sections 1 and 2 to the arbitration agreement.  See 139 S. Ct. at 537-38, 538-543. “The parties’ private agreement may be crystal clear and require arbitration of every question under the sun,” the U.S. Supreme Court has said, “but that does not necessarily mean the Act authorizes a court to stay litigation and send the parties to an arbitral forum.” 139 S. Ct. at 537-38.

What Law Applies to Determine Gateway Disputes about Arbitrability to which the Presumption of Arbitrability does not Apply?

State law applicable to contracts generally, without the aid of the presumption of arbitrability, determines whether the parties have formed an arbitration agreement, and whether the agreement is valid and enforceable “upon upon such grounds as exist at law or in equity for the revocation of any contract[,]” 9 U.S.C. § 2; Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630-31 (2009); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). The Federal Arbitration Act preempts state law to the extent that it would put arbitration agreements on a different footing from other contracts or would otherwise frustrate the purposes and objectives of the Federal Arbitration Act. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339-40, 341-42 (2011); Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1622 (2018); Am. Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 238 (2013); Preston, 552 U.S. at 353.

While disputes about whether an issue is capable of being arbitrated are relatively rare, such an issue could arise under federal law in circumstances where Congress has prohibited arbitration of the subject matter. See Compucredit Corp. v. Greenwood, 565 U.S. 95, 104 (2012) (finding federal statutory claims arbitrable “[b]ecause the [statute] is silent on whether claims under the [statute] can proceed in an arbitra[l] forum, [and accordingly] the FAA requires the arbitration agreement to be enforced according to its terms”). To the extent that a state law prohibits arbitration of a dispute that would be capable of arbitration under federal law, then that state law would be preempted (i.e., superseded) by the Federal Arbitration Act, unless it concerned a federal law saved from preemption by federal law. See, e.g., Preston, 552 U.S. at 353 (FAA preempts state statute requiring dispute to be brought in an administrative, rather than arbitral forum); Hennessy Indus., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 770 F.3d 676, 678-79 (7th Cir. 2014) (McCarran-Ferguson Act saved Illinois Insurance Code provision from pre-emption by the Federal Arbitration Act).  

How is Presumption of Arbitrability Applied to Resolve Gateway Questions about the Scope of an Arbitration Agreement?

Predispute arbitration agreements ordinarily define in advance, either broadly or narrowly, the universe of disputes that parties agree to submit to arbitration. A broad arbitration agreement might, for example, require the parties to submit to arbitration “all disputes arising out of or relating to” the parties’ contract, “including the breach, termination or validity thereof” shall be submitted to arbitration before a single arbitrator. See, e.g., International Institute for Conflict Prevention & Resolution (“CPR”), 2019 Administered Arbitration Rules, CPR Model Clauses for Administered Arbitration, Standard Contractual Provisions, A. Pre-Dispute Clause for Administered Arbitration (2019). A narrow arbitration agreement, might, for example, provide that the parties agree to arbitrate only one specific type of dispute that might arise.

Under arbitration’s first principle, parties cannot be compelled to arbitrate disputes that they have not submitted, or agreed to submit, to arbitration. See, e.g., Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 678-80 (2010) (citation and quotations omitted); Granite Rock, 561 U.S. at 295 & n.7, 294 n.6.

So when a court is faced with a claim that a party has failed or refused to arbitrate a dispute it allegedly promised to submit to arbitration, it must determine what disputes the parties agreed to arbitrate.

This is an exercise in contract interpretation, and state law principles of contract interpretation govern it, with one important exception: the presumption of arbitrability, a judicially-formulated, federal law rule derived from Section 2 of the Federal Arbitration Act. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995) (“[W]hen a court interprets such provisions in an agreement covered by the FAA, ‘due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.'”) (citation omitted); Tomhannock, LLC v. Roustabout Res., LLC, 33 N.Y.3d 1080, 1082 (2019) (Mem) (“Interpreting a contract ‘is the process of determining from the words and other objective manifestations of the parties what must be done or forborne by the respective parties in order to conform to the terms of their agreements.'”) (quoting 11 Richard A. Lord, Williston on Contracts § 30:1 (4th ed May 2019 update)).

Generally, contract language is ambiguous when it is reasonably susceptible to more than one interpretation. See, e.g., Ellington v. EMI Music, Inc., 24 N.Y.3d 239, 250 (2014) (New York law).

In contract disputes ambiguities in contract language are generally resolved by the consideration of extrinsic evidence of intent, which, if conflicting, may require the fact finder to make the ultimate decision. See Kolbe v. Tibbetts, 22 N.Y.3d 344, 354-56 (2013) (contract ambiguity precluded summary judgment because ambiguity about scope of agreement was a question of fact requiring an evidentiary hearing). Alternatively, when no extrinsic evidence exists, or is inconclusive, ambiguities may be resolved by a contract interpretation rule of last resort such as contra proferentem, which, when applicable, resolves ambiguities against the drafter of the contract. See Perella Weinberg Partners LLC v. Kramer, 153 A.D.3d 443, 448 (1st Dep’t 2017).  

But resolving questions about ambiguous contract language through discovery and an evidentiary hearing or trial is time consuming and expensive and consequently would not promote arbitration as a cost-effective alternative to litigation. While resolving gateway disputes is critically important, the more time courts (and even arbitrators) spend resolving gateway disputes, the less attractive an alternative to litigation arbitration tends to become.

The presumption of arbitrability, which is a judicially-developed, federal-law rule of contract interpretation helps solve this problem. It resolves ambiguities in the scope of an arbitration agreement itself in favor of arbitration, and supersedes all state law to the contrary, thereby streamlining judicial and arbitral determinations of arbitrability questions.

Under the presumption, all a court has to do to resolve a question of arbitrability concerning the scope of an arbitration agreement is to undertake what amounts to a two-step inquiry, and determine whether: (a) the dispute is clearly and unambiguously included within or excluded from the scope of the arbitration agreement; and (b) if not, then whether the arbitration agreement is reasonably susceptible of at least one interpretation that would require the parties to arbitrate the dispute. If the answer to question (a) is yes, then the Court determines whether the dispute is arbitrable according to the dictates of the clear and unambiguous terms of the arbitration agreement.

If the answer to (a) is no, and the Court determines that the language is reasonably susceptible to an interpretation that requires arbitration ((b)), then the Court directs the parties to arbitrate their dispute. If the Court answers (a) no, but finds that the arbitration agreement is not reasonably susceptible to an interpretation that requires arbitration ((b)), then the Court will not direct the parties to arbitrate.

Let’s consider a couple of hypotheticals for illustration purposes. Suppose A and B have a contract under which B undertakes to perform certain services for A. The contract contains a broad arbitration clause like the one discussed above, under which the parties promise to submit to a single arbitrator “all disputes arising out of or relating to” the parties’ contract, “including the breach, termination or validity thereof. . . .”

In the course of performing the services for A, B’s employees, while working on A’s premises, and performing their work carelessly, cause damage to A’s property. A sues B for negligence in the performance of its duties, which resulted in damage to A’s property. It also sues B for breach of contract. 

B moves for an FAA Section 3 stay of litigation pending arbitration of both the contract and the negligence claims. A concedes the breach of contract claim is arbitrable, but contends that the tort claim is not, because it is based on legal duties independent from the contract. B disputes A’s characterization of the duties.

Our hypothetical scope provision applies to “any dispute arising out of or relating to” the parties’ contract. It is what courts often refer to as a “broad” arbitration agreement, and for good reason.

While it clearly encompasses contract-law-based claims that involve the parties’ agreement, and contemplates arbitration of other types of claims (e.g., equitable, tort-based or statutory claims) that may require consideration of the parties’ agreement or the relationship created by it, the outer extent of its limits are necessarily not precisely defined.

The prepositional phrase “arising out of or relating to” describes a relationship between the subject—“any dispute”— and the object—“this Agreement”—that may be direct or indirect. From the standpoint of linguistics or philosophy, the number of things that make up a class of things that might arise out of or relate to some other thing outside that class is infinite, or at least practically so. The famous children’s story, “When a Butterfly Sneezes” illustrates that by explaining in a step-by-fashion how a series of interdependent, sequential events—beginning with a butterfly’s sneeze and ending with a change in the weather thousands of miles of way—are causally connected with one another, albeit each in a way progressively more spatially and temporally remote from those that preceded it.

Obviously, courts do not interpret open-ended terms like “arising out of or relating to” in their linguistic and metaphysical sense; they decide on a case-by-case basis whether the parties’ arbitration agreement evidences their intent to submit a particular dispute to arbitration.

But the presumption in favor of arbitration cuts off the inquiry once a court determines—from an objective standpoint and consistent with arbitration-neutral principles of state contract law—that the arbitration agreement is  reasonably susceptible to an interpretation that would require arbitration  of the dispute, even if it is also reasonably susceptible of an interpretation that would not require arbitration. Put differently, if the dispute is at least arguably within the scope of the arbitration agreement, then the dispute will be deemed to be subject to arbitration.

In this hypothetical, the tort claim may or may not be clearly included within the universe of arbitrable disputes contemplated by the contract and it certainly is not excluded from it (inquiry (a)). A court might well conclude that it is clearly included within the clause, although we could change the facts of the hypothetical to make that outcome less likely.

But under the presumption of arbitrability, it doesn’t matter, and this is an easy case to resolve: A must arbitrate both the tort claim and the breach of contract claim. Whether or not the dispute is clearly included within the scope of the arbitration agreement, the arbitration agreement is reasonably susceptible to an interpretation that covers the dispute, even if it might also be interpreted reasonably not to include it (inquiry (b)).

Now suppose that A and B had more than one contract. The contract that was the subject of the last hypothetical is a long term contract that was entered into several years ago, but the business relationship A and B enjoyed as a result of that contract resulted in A and B entering into other contracts covering a variety of other subject matters, some of which contained arbitration agreements, some of which did not.

A dispute arises for breach of one of these agreements—one under which A agrees to perform services for B that are different in kind from those B agreed to perform for A under the earlier contract. The dispute does not concern the services B undertook to perform for A under the earlier contract. And unlike the earlier contract, this later contract does not contain an arbitration agreement.

B sues A and A moves to stay the action in favor of arbitration under the earlier contract. A contends that the earlier contract’s arbitration agreement requires arbitration because the contract B claims A breached would not have been entered into were it not for the first contract (which was entered into a number of years ago, even though it is still in effect).

B also points out that under the earlier contract, A was the service provider, not the entity for which the services were provided, and that, in any event, the parties have entered into a number of contracts since that first one, some of which have arbitration agreements, and some, like the currently disputed contract, do not.

B wins again, only this time the dispute goes to court, not arbitration. As to the first step of the two-step inquiry (inquiry (a)), the arbitration agreement in the first contract does not clearly exclude or include the dispute within its scope. As to the second step (inquiry (b)), the dispute does not even arguably relate to the first contract and thus the first agreement’s arbitration clause is not reasonably susceptible to an interpretation that covers the dispute.

What Defenses, if any, Can Parties Assert against Enforcement of an Arbitration Agreement, and what Law Governs these Defenses?

Under Federal Arbitration Act Section 2, “arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019) (citation and quotation omitted).

Section 2 establishes, as we’ve said, a federal “policy favoring arbitration of claims that parties contract to settle in that matter.” Preston v. Ferrer, 552 U.S. 346, 353 (2008) (citation and quotation omitted). It preempts state law that purports to prohibit the arbitration of certain types of claims or otherwise impedes the purposes and objectives of the Federal Arbitration Act, which are to promote arbitration by enforcing agreements to arbitrate. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341-42 (2011); Am. Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 238 (2013); Preston, 552 U.S. at 353.

But Section 2 has a “savings clause,” which provides that arbitration agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (emphasis added); see AT&T Mobility, 563 U.S. at 339-40. “[G]rounds as exist at law or in equity for the revocation of any contract[,]” 9 U.S.C. § 2, has been interpreted to mean state-law contract “defenses that apply to ‘any’ contract.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1622 (2018) (citation omitted).

By “recogniz[ing] only defenses that apply to ‘any’ contract[,]” “the [savings] clause establishes a sort of ‘equal-treatment’ rule for arbitration contracts.” Epic Systems, 138 S. Ct. at 1622. Put another way, the savings clause “requires courts to place arbitration agreements on an equal footing with all other contracts.” Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1424 (2017) (quotations and citations omitted).    

The “savings clause [therefore] permits agreements to arbitrate to be invalidated by ‘generally applicable contract defenses such as fraud, duress, or unconscionability,’ but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue[,]” AT&T Mobility, 563 U.S. at 339-40 (citations omitted); Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996), including “defenses that target arbitration. . . by more subtle methods, such as by ‘interfer[ing] with fundamental attributes of arbitration.’” Epic Systems, 139 S. Ct. at 1622 (quoting AT&T Mobility, 563 U.S. at 344) (brackets in original). 

The question whether a state law contract defense can be asserted against an arbitration agreement consistent with Section 2 can sometimes be perplexing. For example, a claim that a person was coerced into entering an arbitration agreement under duress would be cognizable under Section 2 provided that a like claim of duress would be a defense to the enforcement of any other kind of contract. So if a party resisting arbitration claims that the other party forced it to sign an arbitration agreement under gunpoint, then that defense would be one it could assert under Section 2’s savings clause.

But suppose a state law deems unenforceable on unconscionability or public policy grounds “any contract,” whether to litigate, arbitrate, or otherwise, that purports to waive the procedural rights a consumer might have under the state’s civil practice rules, which apply in actions brought in state courts. Party A invokes that law when Party B attempts to compel Party A to arbitrate a dispute pursuant to their arbitration agreement, claiming that the arbitration rules under which the parties agreed to arbitrate do not provide the same discovery rights that the state’s civil-practice rules provide in a state court action.  

Party B says that the defense is preempted by Section 2 and not saved from preemption by the savings clause. Party A retorts that the defense applies to “any contract” and that, in any event, it does not purport to render all arbitration agreements unenforceable, only those which require a consumer to arbitrate under rules that do not confer upon a consumer the same procedural rights the consumer would have in state court.  

A court deciding this dispute under the Federal Arbitration Act would hold that Section 2 preempts the state law rule and compel A to arbitrate its dispute with B on the merits. See AT&T Mobility, 563 U.S. at 341-52; Kindred Nursing, 137 S. Ct. at 1426-29.

One of the fundamental characteristics of arbitration under the Federal Arbitration Act is that “an arbitrator derives his or her powers from the parties’ agreement to forgo the legal process and submit their disputes to private dispute resolution.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682-83 (2010). Persons who opt for arbitration “forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” 559 U.S. at 685.  

The FAA’s “overarching purpose. . ., evident in the text of §§ 2, 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.” To allow the state law to impose state-court discovery requirements as a condition to enforcing FAA-governed arbitration agreements would “interfere with fundamental attributes of arbitration and thus create[] a scheme inconsistent with the FAA.” AT&T Mobility, 563 U.S. at 344.

More to come. . .

In Part III of “Gateway Disputes about Whether Arbitration Should Proceed” we’ll answer FAQs about the nuts and bolts of pre-award Federal Arbitration Act practice and procedure under Sections 2, 3, and 4 of the Act. These are the Federal Arbitration Act provisions that address gateway disputes.

Please note. . .

This guide, including the instalments that will follow in later posts, and prior instalments, is not designed to be a comprehensive recitation of the rules and principles of arbitration law. It is designed simply to give clients, prospective clients, and other readers general information that will help educate them about the legal challenges they may face and how engaging a skilled, trustworthy, and experienced arbitration attorney can help them confront those challenges more effectively.

This guide is not intended to be legal advice and it should not be relied upon as such. Nor is it a “do-it-yourself” guide for persons who represent themselves pro se, whether they are forced to do so by financial circumstances or whether they voluntarily elect to do so.

If you want or require arbitration-related legal advice, or representation by an attorney in an arbitration or in litigation about arbitration, then you should contact an experienced and skilled attorney with a solid background in arbitration law.

About the Author

Philip J. Loree Jr. is a partner and founding member of Loree & Loree. He has nearly 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related litigation. He is a former partner of the litigation departments of the New York City firms of Cadwalader, Wickersham & Taft LLP and Rosenman & Colin LLP (now known as Katten Munchin Rosenman LLP).

Loree & Loree represents private and government-owned-or-controlled business organizations, and persons acting in their individual or representative capacities, and often serves as co-counsel, local counsel or legal adviser to other domestic and international law firms requiring assistance or support.

Loree & Loree was recently selected by Expertise.com out of a group of 1,763 persons or firms reviewed as one of Expertise.com’s top 18 “Arbitrators & Mediators” in New York City for 2019, and now for 2020. (See here and here.)

You can contact Phil Loree Jr. at (516) 941-6094 or at PJL1@LoreeLawFirm.com.

ATTORNEY ADVERTISING NOTICE: Prior results do not guarantee a similar outcome.

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2 Responses to “The Businessperson’s Federal Arbitration Act FAQ Guide III: Pre-Award Litigation under Chapter 1 of the Federal Arbitration Act—Gateway Disputes about Whether Arbitration Should Proceed (Part II)”

  1. […] falling within its scope are to be enforced to the same extent as contracts generally. (See here.) […]

  2. […] If you’ve been following our posts on Henry Schein Inc. v. Archer & White Sales Inc., 139 S. Ct. 524 (Jan. 8, 2019) (available at https://bit.ly/2CXAgPw) (“Schein I”), and the U.S. Court of Appeals for the Fifth Circuit decision on remand, Archer and White Sales Inc. v. Henry Schein Inc., 935 F.3d 274 (5th Cir. 2019) (available at http://bit.ly/2P9FGMU) (“Schein II”), then you know that the arbitration proponent, Henry Schein, Inc. (“Schein”), petitioned for rehearing en banc. (See here, here, here, and here.) […]

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