John Fellas SCOTUS's Ill-Advised Recasting of the Federal Policy in Favor of Arbitration
In his International Arbitration article, John Fellas argues that "the notion that an arbitration agreement should be treated just like every other contract—the equal footing principle—is an inadequate ideal for arbitration. Some 'arbitration-preferring procedural rules,' as Justice Kagan calls them, are essential to the efficacy of arbitration precisely because 'arbitration contracts' are not 'like all others.'"
November 08, 2022 at 12:00 PM
17 minute read
Alternative Dispute Resolution
In Morgan v. Sundance, 142 S.Ct. 1708 (2022), the Supreme Court addressed a common issue that arises in arbitration—whether by pursuing litigation instead of invoking an arbitration agreement to which it is a party, that party might waive its right to arbitrate. In Morgan, the court resolved a circuit split on the proper test for waiver in the arbitration context. Some circuit courts had held that there was a higher standard to establish the waiver of a contractual right to arbitrate than that applicable to other contractual rights.
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