Focus (Forum & Focus)
May 16, 2007
Clause Clarification
Focus Column – By Richard Chernick – Under the “separability doctrine,” arbitrators decide whether contracts are valid, but judges decide whether arbitration clauses are, at least usually.
By Richard Chernick
If a contract contains an arbitration agreement, then a claim that the contract is unenforceable, for fraud or other reasons, must be decided by the arbitrator. But a claim that the arbitration clause itself is unenforceable must be decided by the court, the U.S. Supreme Court instructed in Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395 (1967).
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