Arbitration Law's Separability Doctrine
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The document discusses the separability doctrine in arbitration law, particularly referencing the Prima Paint and Buckeye cases. It outlines how the doctrine allows arbitration clauses to be viewed independently from the contracts they are part of and addresses various legal arguments related to contract validity and enforceability. The author expresses a critical view on the doctrine's implications for contractual freedom, stating that there should be no duty to arbitrate unless a valid contract exists.
![Buckeye
“Our opinion today ... does not speak to the
issue decided in the cases ... [holding] that it is
for courts to decide whether the alleged
obligor ever signed the contract, whether the
signor lacked authority to commit the alleged
principal, and whether the signor lacked the
mental capacity to assent” (citations omitted)](https://image.slidesharecdn.com/arbitrationlawsseparabilitydoctrine-131028145408-phpapp02/85/Arbitration-Law-s-Separability-Doctrine-10-320.jpg)
Arbitration Law's Separability Doctrine
- 1. Stephen J. Ware Professor of Law University of Kansas ware@ku.edu 785-864-9209
- 2. Arbitration Law’s Separability Doctrine I. II. III. IV. Prima Paint Buckeye Applications of Separability Open Issues
- 3. Prima Paint Allegation: container contract induced by fraud Holding: court may not address that argument Result: Prima Paint has a duty to arbitrate
- 4. Prima Paint “arbitration clauses as a matter of federal law are ‘separable’ from the contracts in which they are embedded”
- 5. Prima Paint Open issues: - applies to what arguments beyond fraudulent inducement? - preempts inconsistent state law?
- 6. Buckeye Answers 1.5 of the 2 open issues from Prima: - separability doctrine does preempt inconsistent state law - separability doctrine applies not just to misrepresentation but also to some (all?) other arguments that an arbitration agreement is unenforceable
- 7. Buckeye Allegation: container contract illegal Holding: court may not address that argument
- 8. Applications of Separability mutual assent, consideration, authority to assent on behalf of others, mistake, duress, undue influence, incapacity, unconscionability, impracticability, frustration of purpose, statute of frauds, statute of limitations Which of these arguments go to the arbitrator?
- 9. Buckeye “The issue of the contract’s validity is different from the issue of whether any agreement between the alleged obligor and obligee was ever concluded. Our opinion today addresses only the former,”
- 10. Buckeye “Our opinion today ... does not speak to the issue decided in the cases ... [holding] that it is for courts to decide whether the alleged obligor ever signed the contract, whether the signor lacked authority to commit the alleged principal, and whether the signor lacked the mental capacity to assent” (citations omitted)
- 11. Buckeye “The issue of the contract’s validity is different from the issue of whether any agreement between the alleged obligor and obligee was ever concluded.” Is this the distinction between formation of a contract and a defense to its enforcement?
- 12. For Court? Formation: - mutual assent, - consideration, - authority to assent on behalf of others,
- 13. For Arbitrator? Defenses to enforcement: mistake, duress, undue influence, incapacity, unconscionability, impracticability, frustration of purpose, statute of frauds, statute of limitations
- 14. Normative Views What do we think of a separability doctrine that has courts deciding arguments that no contract (alleged obligor and obligee) was formed but sends to arbitrators arguments raising a defense to the enforcement of the contract?
- 15. Normative Views on Formation/Defense Distinction Park Rau Ware
- 16. Normative Views on Formation/Defense Distinction Park: pretty good? Rau Ware
- 17. Normative Views on Formation/Defense Distinction Park: pretty good? Rau: pretty good except duress and incapacity Ware
- 18. Normative Views on Formation/Defense Distinction Park: pretty good? Rau: pretty good except duress and incapacity Ware: pretty bad
- 19. Separability: Friend or Foe of Contractual Freedom? Foe. Ware’s position: no duty to arbitrate unless that party has formed an enforceable contract to arbitrate.
- 20. Stephen J. Ware Professor of Law University of Kansas ware@ku.edu 785-864-9209