Express Preclusion of the Federal Arbitration Act for All Bankruptcy-Related Matters

Authors

John R. Hardison

Document Type

Article

Abstract

(Excerpt)

This Article sets forth a more solid justification for bankruptcy courts to refuse to order arbitration of any matter related to and affecting a bankruptcy case through express preclusion. First, this Article describes the historical development of the Supreme Court’s holdings on preclusion of the FAA in general and on the courts of appeals’ current formulation of a bankruptcy exception to the FAA. Next, this Article discusses the statutory, historical, and policy-based support for reading the bankruptcy jurisdictional provisions as creating an express exception to the FAA, or alternatively as supporting an implied exception to the FAA. As discussed, even if based on policy, the exception should extend to all matters relating to bankruptcy cases, and any presumption should be in favor of bankruptcy adjudication, not arbitration. Finally, this Article discusses the place of arbitration even within such framework.