Everything You Really Need To Know About “Separability” In Seventeen Simple Propositions – Vol. 14 No. 1-2

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Author: Alan Scott Rau*

Published: January 2004

United States
Agreement to Arbitrate

Description: We have a document that purports to be a contract, and that purports to contain an arbitration clause. One party, however, takes the position that he simply never agreed to anything—or, perhaps, that as a matter of local contract law the agreement cannot be enforced. Alternatively, he may assert that even should there be an enforceable agreement, the arbitration clause somehow never became part of it. Or perhaps, that while he agreed to arbitrate, he didn’t agree to arbitrate this particular dispute—or under these particular conditions. What happens next? Across a wide spectrum of possible factual patterns, this muchlitigated question implicates the allocation of responsibility for decisionmaking with respect to such questions between courts and arbitrators. Despite its role as one of the conceptual underpinnings of the law of international arbitration, the notion of “separability,” or the “autonomy” of the arbitration clause, is still regularly subject to considerable misunderstanding. In the United States, the occasions for error are multiplied by uncertainty as to what, if anything, may have been added to the picture by the Supreme Court’s opinion in First Options v. Kaplan. And the Supreme Court has this very Term decided three more cases which—if not likely radically to change the terms of our…

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*Robert F. Windfohr & Anne Burnett Professor of Law, The University of Texas at Austin School of Law. I am grateful to my colleague, Jay Westbrook, for his careful attention to and thoughtful comments on an earlier draft, as well as to the participants in the Vanderbilt Journal of Transnational Law’s 2003 Symposium on “International Commercial Arbitration.”