Arbitrability: Current Trends in the United States

Abstract

THIS ARTICLE addresses the current trends in arbitrability in the United States. The issue of arbitrability of claims other than statutorily created claims is now undisputed, as long as the underlying contractual agreement embraces the dispute. Likewise, the result would appear to be virtually the same for most statutorily created claims with the result that US courts will enforce almost all agreements to arbitrate disputes, regardless of the genesis of the claims. This article is divided into two main sections. First, the law governing arbitrability is discussed. The second part analyses current trends in the arbitrability of specific types of disputes. Congress passed the Federal Arbitration Act in 1925 (FAA).1 Historically, US courts had refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. The FAA began the process of ending the long standing judicial hostility towards arbitration.2 The FAA gives...