Today, the Eighth Circuit added to the burgeoning jurisprudence on who decides questions of arbitrability — the court or the arbitrator.  The district court refused to enforce an arbitration clause, which the plaintiff Matthew Enderlin challenged as lacking mutuality, as unconscionable, and as against public policy under Arkansas law.  The Eighth Circuit affirmed.  The court held, first, that Mr. Enderlin’s challenge to the arbitration clause constituted a "claim" that the clause required the parties to arbitrate.  But a later section of the contract exluded from arbitration any claim "based on" the arbitration clause.  The court concluded that the exclusion applied to the Mr. Enderlin’s "claim" of unenforceability and thus authorized the district court to decide it.  Enderlin v. XM Satellite Radio Holdings, Inc., No. 06-3420 (8th Cir. Apr. 18, 2007).

Blawgletter suspects that the author of the contract wanted to exclude only a "claim" to enforce the arbitration clause from arbitration.  If so, the author needn’t have bothered.  The federal Arbitration Act already authorizes a contracting party to go to court to compel arbitration.  The exclusion in this case overshot the goal, perversely allowing Mr. Enderlin to get a court ruling on his non-enforcement claim.

Barry Barnett

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