ABSTRACT
The US Supreme Court has intoned its recognition of the separability presumption in arbitration (separation of arbitration agreements from their container contracts) under Sections 2 and 4 of the FAA. The Court’s interpretation of the Act has sparked confusion as to the extent of separability’s adoption – whether limited or absolute – in lower courts, and rigorous scholarly debate. Separability of the arbitration clause from its container has two effects or functions in American law. The primary effect is that the legal status of the container has no impact on the arbitration clause. And the secondary effect is the ‘jurisdiction-allocating’ function, by which the arbitrator has authority to determine her own jurisdiction, which indeed is possible only if there is no challenge to the validity or existence of the arbitration agreement …
Fazilatfar, Hossein, In Defense of Separability: Prima Paint, Buckeye, and Rent-A-Center (2022). 54 (2) Texas Technology Law Review 183-230 (2022).
First posted 2022-07-16 12:00:48
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