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

2006] 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