Monday, April 26, 2010

Arbitration - Can the Arbiter Decide Issues of Substantive Arbitrability?

In Rent-A-Center West, Inc. v. Jackson, 581 F.3d 912 (9th Cir. 2009), cert. granted, 175 L. Ed. 2d 941 (U.S. 2010) (Docket No. 09-497), the Supreme Court is considering, in part, whether the parties to an arbitration agreement can agree that the arbiter decide both substantive and procedural arbitrability questions . See the ScotusWiki page on the case, complete with briefs, a copy of the 9th Circuit decision, and a transcript of the oral argument before the Supreme Court, here. It would appear that Delaware has already resolved these questions. In James & Jackson, LLC v. Willy Gary, LLC, 906 A.2d 76 (Del. 2006), the Delaware Supreme Court held that if the language of the agreement states a clear intention on the part of the parties that any issue of substantive arbitrability is to be decided by the arbiter, that is permissible. A copy of the opinion is available here. And, quite recently, Vice Chancellor Strine in Orix LF, LP v. INSCAP Asset Mgmt., LLC, 2010 De. Ch. LEXIS 70 (Del. Ch. Apr. 13, 2010), applied Willy Gary. A copy of the opinion is available here. For a discussion of that recent opinion see this recent post in the Delaware Corporate and Commercial Litigation Blog.

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