It seems that arbitration is never far from mind for the US Supreme Court. In recent years, the Court has returned again and again to arbitration, and the current term is no exception. In an annual term in which it is expected to issue opinions in approximately 70 cases, the Court has already heard argument in three arbitration cases: Henry Schein, Inc. v. Archer and White Sales, Inc., New Prime, Inc. v. Oliveira and Lamps Plus, Inc. v. Varela. The Court has now decided the first two, and all three will make a big splash in the arbitration world.

Henry Schein, Inc. v. Archer and White Sales, Inc.

Under the US Arbitration Act, often referred to as the Federal Arbitration Act (FAA), US courts will enforce parties’ agreements to arbitrate their disputes instead of taking them to court. But what if the disputes involve ‘gateway’ questions of arbitrability, such as whether the parties even agreed to arbitrate in the first place? Who should hear these gateway questions – a court or an arbitrator? The issue of whether an arbitral tribunal gets to rule on its own jurisdiction, often referred to in the arbitration world as competence-competence, was on the Supreme Court’s mind when it agreed to hear argument in Henry Schein, Inc. v. Archer and White Sales, Inc.

Apr-Jun 2019 issue

Skadden, Arps, Slate, Meagher & Flom, LLP