Court's Second '07-'08 ADR Case Challenges Arbitrator Supremacy

摘要

Less than two years ago, the U.S. Supreme Court in Buckeye Check Cashing Inc. v. Cardegna, 546 U.S. 440 (2006), clarified that arbitrators, not judges, have primary responsibility for determining the validity of contracts containing arbitration clauses. The Buckeye Court held that, as a matter of substantive arbitration law under the Federal Arbitration Act, 9 U.S.C. §§1-16, any challenge to the validity of the contract as a whole must be determined by the arbitrator, even if the obligation to arbitrate is contained in the contract claimed to be unenforceable. The Court made clear that this FAA-based principle applies even to state law-based challenges to contract validity sought to be presented to a state court. Buckeye has since been cited in more than 170 federal and state court decisions, often as embodying the FAA's pro-arbitration policy, and the nationwide trend toward enforcement of arbitration agreements.