Shattering the Barrier of Inarbitrability – Vol. 22 No. 4

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Author: Thomas E. Carbonneau*

Published: June 2012


The doctrine of federal preemption demolished any prospect of state law resistance to the unitary legal regulation of arbitration. By exacting comprehensive allegiance to the basic canons of the federal law on arbitration, the Supreme Court quelled the fear expressed in Robert Lawrence about the chaos that might arise from an over-abundance of legislative diversity. It guaranteed that deviant provisions in state jurisdictions would not undermine the federal position on arbitration. It thereby purged American law of any lingering or reemerging hostility to arbitration. At a minimum, it mandated acquiescence to an accommodative legal regime on arbitration. The federal law imperative could be imposed as long as a linkage—no matter how tenuous—existed to interstate commerce.

Like inhospitable state laws, inarbitrability was an obstacle to unimpeded recourse to arbitration. It stood as a potential barrier. It came in two forms: contractual inarbitrability and subject-matter inarbitrability. First, the defense of inarbitrability could be brought as a claim against the contract of arbitration, alleging either its non-existence, defective formation, or inadequate scope of coverage. By invoking any one of these grounds, parties sought to eliminate the arbitral tribunal’s authority to rule on submitted matters. Party consent is …

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*Orlando Distinguished Professor of Law and Faculty Director, Arbitration Institute, Penn State University.