Delegation Clauses in Arbitration Agreements

The Missouri Supreme Court analyzed delegation clauses in  State ex rel. Newberry v. Jackson, 2019 WL 2181859 (May 21, 2019). Employees bringing a workplace discrimination claim challenged the delegation provision in an arbitration agreement contained in an employment contract. The employment contact at issue here incorporated the AAA rules, which delegate decisions about enforceability to the arbitrator. The US Supreme Court's decision in Rent-A-Center held that delegation clauses are severable from arbitration clauses much as Prima Paint long ago held that  an arbitration agreement is a separate component of a contract and, therefore, to avoid a motion to compel a party needs to challenge the arbitration agreement and not just contract as a whole. The Missouri Supreme Court says that a delegation clause in an arbitration agreement is similar and must be specifically challenged to avoid delegation to the arbitrator. The Court also found that no such specific challenge was made in this case. 

Arbitration Nation goes into more depth on the decision and the issue of separability/delegation as a whole.

Arbitration Law's Separability Doctrine After Buckeye Check Cashing, Inc. v. Cardegna

Arbitration Law's Separability Doctrine After Buckeye Check Cashing, Inc. v. Cardegna

This article analyzes the Supreme Court cases of Buckeye Check Cashing, Inc. v. Cardegna, and Prima Paint Corp. v. Flood & Conklin Manufacturing Co.  It discuss the separability issues they leave unresolved. Finally, this Article critiques the separability doctrine and calls for its repeal by Congress.