Court v. Arbitrator: Who Should Decide Whether Prelitigation Conduct Waves the Right To Compel an Arbitration Agreement?

Authors

Michael P. Scharpf

Document Type

Note

Abstract

(Excerpt)

While acknowledging that Supreme Court clarification will ultimately be needed to resolve the confusion created by the Howsam decision, this Note concludes by recommending that waiver by prelitigation conduct be decided by the arbitrator. Part I of this Note provides the historical relationship between courts and the arbitration process prior to Howsam. Part II discusses the Howsam decision. Part III examines the circuit court split over waiver that has developed as a result of Howsam. Part IV analyzes the Sixth Circuit's decision in Chronimed and finds that the court incorrectly held that waiver by prelitigation conduct was for the court to decide. It further explains why waiver by prelitigation conduct is best left to the arbitrator to decide.