In Schein v. Archer and White, 139 S.Ct. 524 (2019), the U.S. Supreme Court addressed a narrow aspect of a perennial question that arises in arbitration: Who, as between courts and arbitrators, should resolve objections to arbitrability made at the outset of an arbitration proceeding? Before discussing Schein, it is worth explaining the nature of that question.

Questions of Arbitrability

Sometimes parties disagree about whether a particular dispute properly belongs in arbitration. This disagreement has been characterized by U.S. courts as one about “arbitrability.” A party might assert that a dispute is not arbitrable on any number of grounds: the arbitration clause does not cover the dispute; a condition precedent to arbitration (e.g., mediation) was not met; the contract is invalid on grounds of illegality. The question arises as to who, as between courts and arbitrators, should resolve such objections at the front-end of the process. Two important considerations underlie the “who decides” question: the legitimacy of the arbitration process and its viability.

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