Severability Doctrine: Scotus (and Others) Offers a Refresher on Defeating a Motion to Compel Arbitration

摘要

One of the most confounding doctrines in federal arbitration jurisprudence is the severability doctrine. The U.S. Supreme Court has held, since Prima Paint Corp. v. Flood & Conklin Mfg., 388 U.S. 395 (1967) (available at http://bit. ly/2DOWum4) that courts must enforce arbitration clauses within contracts, even if the entire contract is invalid or unenforceable. (Most non-arbitration geeks don't believe us when we tell them that's the law.) The only time a court can address the argument for invalidity is if the litigant directs it specifically at the arbitration clause. For example, an argument that the elves' contract with Santa is invalid because it's illegal to pay them in candy canes is an argument about the contract as a whole, and would get sent to arbitration if the elves' contract had a valid arbitration clause. On the other hand, an argument that the arbitration clause in the elves' contract with Santa is unconscionable because it calls for arbitration in the South Pole with Mrs. Claus as the arbitrator *is* specific to the arbitration clause, and should be decided by the court. But there is a second level of complication. If the arbitration clause clearly and unmistakably delegated questions of validity to an arbitrator-what is referred to as a "delegation clause"-then the only way to avoid arbitration is to argue that the delegation clause itself is invalid. Rent-a-Center, West v. Jackson, 561 U.S. 63, 73 (2010) (available at https://bit.ly/2Bn7RRL).