There have been a number of important cases decided in 2019 concerning the application and effect of “delegation provisions”—clear and unmistakable agreements to arbitrate arbitrability issues. Delegation provisions, which we’ll refer to as “delegation agreements,” are not a recent phenomenon, and are quite common, especially in administered arbitration, where consent to applicable arbitration rules typically includes clear and unmistakable consent to arbitrate arbitrability. But there’s been a good deal of judicial controversy this year over whether delegation agreements should, in certain circumstances, be given the full force and effect that they deserve.
We think that delegation provisions should ordinarily be enforced as written and according to their terms. When Courts interpret and apply delegation agreements, they should, consistent with Rent-a-Center West, Inc. v. Jackson, 561 U.S. 63 (2010), consider those agreements to be separate and independent from the arbitration agreements in which they are contained.
Much of the controversy has centered on whether terms of the arbitration agreement should define or circumscribe the scope of the delegation agreement and even effectively negate it. Consequently, certain courts have conflated the question of who gets to decide whether an issue is arbitrable with the separate question of what the outcome of the arbitrability dispute should be, irrespective of who decides it.
The SCOTUS Schein Decision and The Fifth Circuit’s Schein II Decision on Remand
The first significant delegation-agreement development this year came on
