Originally from Alternatives to the High Cost of Litigation

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Contracting parties are presumed not to agree to arbitrate arbitrability questions. But if they clearly and unmistakably agree to arbitrate arbitrability, then courts are supposed to enforce that agreement.

A clear and unmistakable agreement to arbitrate arbitrability is commonly referred to as a “delegation provision,” a “delegation clause,” or a “delegation agreement.” We’ll use the term “delegation agreement.”

On Jan. 8, the U.S. Supreme Court decision in Schein v. Archer & White Sales Inc., 139 S. Ct. 524 (2019) (available at https://bit.ly/2CXAgPw) (“Schein I”), held that courts faced with delegation agreements must enforce those agreements according to their terms, and require arbitration of even wholly groundless arbitrability disputes.