This presentation, given at the University of Nevada, summarizes an article Arbitration Law's Separability Doctrine After Buckeye Check Cashing, Inc. v. Cardegna, Nevada Law Journal, Vol. 8, No. 107, 2007.

1. Stephen J. Ware
Professor of Law
University of Kansas
ware@ku.edu
785-864-9209

2. Arbitration Law’s
Separability Doctrine
I.
II.
III.
IV.
Prima Paint
Buckeye
Applications of Separability
Open Issues

3. Prima Paint
Allegation: container contract induced by
fraud
Holding: court may not address that argument
Result: Prima Paint has a duty to arbitrate

4. Prima Paint
“arbitration clauses as a matter of federal law
are ‘separable’ from the contracts in which
they are embedded”

5. Prima Paint
Open issues:
- applies to what arguments beyond fraudulent
inducement?
- preempts inconsistent state law?

6. Buckeye
Answers 1.5 of the 2 open issues from Prima:
- separability doctrine does preempt
inconsistent state law
- separability doctrine applies not just to
misrepresentation but also to some (all?) other
arguments that an arbitration agreement is
unenforceable

7. Buckeye
Allegation: container contract illegal
Holding: court may not address that argument

8. Applications of Separability
mutual assent, consideration, authority to
assent on behalf of others, mistake, duress,
undue influence, incapacity, unconscionability,
impracticability, frustration of purpose, statute
of frauds, statute of limitations
Which of these arguments go to the arbitrator?

9. Buckeye
“The issue of the contract’s validity is different
from the issue of whether any agreement
between the alleged obligor and obligee was
ever concluded. Our opinion today addresses
only the former,”

10. Buckeye
“Our opinion today ... does not speak to the
issue decided in the cases ... [holding] that it is
for courts to decide whether the alleged
obligor ever signed the contract, whether the
signor lacked authority to commit the alleged
principal, and whether the signor lacked the
mental capacity to assent” (citations omitted)

11. Buckeye
“The issue of the contract’s validity is different
from the issue of whether any agreement
between the alleged obligor and obligee was
ever concluded.”
Is this the distinction between formation of a
contract and a defense to its enforcement?

12. For Court?
Formation:
- mutual assent,
- consideration,
- authority to assent on behalf of others,

13. For Arbitrator?
Defenses to enforcement:
mistake, duress, undue influence, incapacity,
unconscionability, impracticability, frustration
of purpose, statute of frauds, statute of
limitations

14. Normative Views
What do we think of a separability doctrine
that has courts deciding arguments that no
contract (alleged obligor and obligee) was
formed but sends to arbitrators arguments
raising a defense to the enforcement of the
contract?

15. Normative Views on
Formation/Defense Distinction
Park
Rau
Ware

16. Normative Views on
Formation/Defense Distinction
Park: pretty good?
Rau
Ware

17. Normative Views on
Formation/Defense Distinction
Park: pretty good?
Rau: pretty good except duress and incapacity
Ware

18. Normative Views on
Formation/Defense Distinction
Park: pretty good?
Rau: pretty good except duress and incapacity
Ware: pretty bad

19. Separability: Friend or Foe of
Contractual Freedom?
Foe.
Ware’s position: no duty to arbitrate unless
that party has formed an enforceable contract
to arbitrate.

20. Stephen J. Ware
Professor of Law
University of Kansas
ware@ku.edu
785-864-9209