David Horton, Arbitration About Arbitration, 70 Stanford Law Review 363 (2018). David Horton’s ‘Arbitration About Arbitration’ is a thorough and insightful treatment, with both normative and descriptive elements, of the law’s approach to delegation clauses in contracts calling for arbitration. Delegation clauses assign to arbitrators the question of the validity of an agreement to arbitrate (including defenses such as unconscionability and the like) that would otherwise be decided by courts. A typical delegation clause would go something like this: ‘Enforceability of the arbitration clause shall be determined by the arbitrator and not by a court’ or ‘[t]he arbitrator[s] shall determine all issues regarding the arbitrability of the dispute’. Horton focuses on delegation clauses in employment and consumer adhesion contracts, where delegation is most troubling … (more)
[Robert Hillman, JOTWELL, 22 October]
First posted 2018-10-22 12:49:44
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