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Chuck F. Katz
Portland, OR
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Thanks, Mark. So, it makes sense for ADR, JAMS, etc. to have these jurisdictional rules because a well written arbitration clause may incorporate them specifically and explicitly by reference in the arbitration language. I've read that AAA added these jurisdictional rules right after the opinion in 'First Options'. The 'First Options' opinion (the basis for ‘clearly and unmistakably’) only interprets the FAA, and no individual state court, in construing its own state’s Arbitration Statute (whether the UAA or the RUAA), is bound by the First Options/FAA Exception. California has not adopted the RUAA. I just don't understand what governs here.
Anybody: If the UAA, the RUAA and the FAA all clearly proscribe that the court, and not the arbitrator, has the jurisdiction to decide the ‘existence, scope and validity of an arbitration agreement,’ then why do all of these respected arbitration organizations have Arbitrator Jurisdiction Rules that effect just the opposite? Are they ignorant of the Arbitration Statutes?
"The point of the post is that this arbitration agreement fails to make such a delegation, so all of these questions are for courts to decide." What's the basis for the above? What arbitration law governs here? Is the ADR case a "state" matter? Does any of the following federal law apply when an arbitration agreement is silent on threshold issues of arbitrability: ... where the "contract is silent on the matter of who primarily is to decide `threshold' questions about arbitration, courts determine the parties' intent with the help of presumptions." BG Group, PLC v. Republic of Argentina, 572 U.S. ___, 134 S.Ct. 1198, 1206, 188 L.Ed.2d 220 (2014). As to procedural preconditions to arbitration such as waiver, the United States Supreme Court has stated: Courts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration. See Howsam [v. Dean Witter Reynolds, Inc., 537 U.S. 79,] 86, 123 S.Ct. 588[, 154 L.Ed.2d 491 (2002)] (courts assume parties `normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters'. See use of the above, for example, in this case: https://scholar.google.com/scholar_case?case=7244674415876938226
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Mar 8, 2018