2006/Vol. 5 No.1 - Hamline Law - Hamline University

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42 THE JOURNAL OF AMERICAN ARBITRATION [<strong>Vol</strong>. 5:1 A pre-hearing conference may be required to deal with “arbitrability”—whether the dispute is actually subject to arbitration. Does the arbitrator have authority to determine if the dispute is arbitrable? Courts are in disagreement concerning the question of who determines “arbitrability.” Does the arbitrator at a pre-hearing conference determine the answer or does a court? Some courts have held that arbitrators are to make determinations relating to arbitrability. 165 In international law, the concept of kompetenz-kompetenz permits the arbitrator to determine his or her own competence over this primary jurisdictional matter. 166 U.S. courts favor assigning the duty to the courts, but allow the parties to assign determination of jurisdictional matters to the arbitrator via the arbitration clause itself, 167 whereas medical information if the disclosure is compelled by . . . an arbitrator or arbitrator panel, when arbitration is lawfully requested by either party, pursuant to a subpoena duces tecum issued under Section 1282.6 of the Code of Civil Procedure, or any other provision authorizing discovery in a proceeding before an arbitrator or arbitration panel. Id. 165. See Atcas v. Credit Clearing Corp., 197 N.W.2d 448, 452 (Minn. 1972) (overruled on other grounds). The Minnesota Supreme Court held that: (1) If the parties evinced a clear intent to arbitrate a controversy arising out of specific provisions of the contract, the matter is for the arbitrators to determine and not the court. (2) If the intention of the parties is reasonably debatable as to the scope of the arbitration clause, the issue of arbitrability is to be initially determined by the arbitrators subject to the rights of either party [to submit an application requesting that the court vacate the award]. Id. 166. See LEW ET AL., supra note 81, at 332-34; STEPHEN M. SCHWEBEL, INTERNATIONAL ARBITRATION: THREE SALIENT PROBLEMS 2 (Cambridge Univ. Press 1987). 167. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938 (1995); Allstate Ins. Co. v. Stinebaugh, 824 A.2d 87, 94 (Md. 2003) (quoting Gold Coast Mall Inc. v. Larmar Corp., 468 A.2d 91, 95-97 (Md. 1983)). The Maryland Supreme Court delegated the responsibility for determining arbitrability differently than the Minnesota court, stating that: [I]f an arbitration clause is clear, it is initially for the courts to determine whether the subject matter of a dispute falls within the scope of the arbitration clause. . . [I]f an arbitration clause is unclear “as to whether the subject matter of the dispute falls within the scope of the arbitration agreement,” the question of arbitrability ordinarily should be left to the arbitrator. Id. (internal citations omitted). The United States Supreme Court took an all together different approach, stating that “[t]he question whether parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination unless the parties clearly and unmistakably
<strong>2006</strong>] ARBITRATION: THE BASICS 43 international courts favor allowing the arbitrator to determine jurisdictional issues. 168 Another important concept which works in tandem with kompetenzkompetenz is the “separability” doctrine. This doctrine states that the arbitration clause is enforceable, separate and distinct from the remainder of the contract, and survives a finding that the contract is void unless the arbitration clause itself is found to be invalid. 169 In June 2005, the United States Supreme Court granted certiorari in Cardegna v Buckeye Check Cashing, Inc. to determine this important question of “separability” and who has the authority to determine “arbitrability,” the arbitrator or a judge. 170 The arbitrator’s authority is derived from the contract, which serves as the basis for the arbitrator’s jurisdiction in arbitration proceedings. 171 In the absence of a valid, binding agreement in writing or a court mandate to go to arbitration, the arbitrator is without power to hear the case. 172 Agreements not properly ratified, procured by fraud, or expired are not valid agreements and, therefore, may deprive the arbitrator of authority to hear the case. 173 In other words, the case is not “arbitrable.” In situations where the contract was procured through fraud, however, the “separability doctrine” permits the arbitration clause to stand alone, unless the fraud goes also to the making of the arbitration clause itself. 174 provide otherwise.’” Howsam v. Dean Witter Reynolds, Inc., 531 U.S. 79, 79 (2003) (quoting AT & T Techs., Inc. v. Communications Workers, 475 U.S. 643, 649 (1986)). 168. See LEW ET AL., supra note 81, at 330-32. 169. CARBONNEAU, supra note 14, at 20-21. 170. Cardegna v. Buckeye Check Cashing, Inc., 894 So. 2d 860 (Fla. 2005), cert. granted, 125 S. Ct. 2937 (U.S. 2005) (arguing that allowing arbitration clause to survive otherwise void and illegal contract would be wrong result). 171. NOLAN, supra note 3, at 88. The United States Court of Appeals for the Seventh Circuit noted that “arbitrators derive their authority to resolve disputes from the prior agreement of the parties to submit their grievances to arbitration.” Int’l Med. Group, Inc. v. Am. Arbitration Ass’n, Inc., 312 F.3d 833, 842 (7th Cir. 2002) (quoting AT&T Techs., Inc v. Communications Workers of Am., 475 U.S. 643, 648 (1986)). 172. Id. at 88-89; see First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995). Justice Breyer noted that “arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.” Id. 173. First Options, 514 U.S. at 943. 174. SCHWEBEL, supra note 166, at 2-3. Under the “separability doctrine,” when “a dispute arises concerning the initial validity or continued existence of the main contract, the arbitration clause, being independent, continues to be valid and binding
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