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How have recent court rulings impacted the practice of arbitration in civil and commercial law?

Mickie Pigne

Well, there have been quite a few court rulings in recent years that have had an impact on arbitration in civil and commercial law. Overall, it seems that these rulings have been fairly favorable to the practice of arbitration, but there are definitely some nuances to consider.

One of the most significant recent rulings was the Supreme Court's decision in the case of Epic Systems Corp. v. Lewis, which came down in 2018. This case involved whether or not employers could require employees to sign arbitration agreements that waived their right to participate in class action lawsuits. The Court ultimately ruled that these agreements were permissible, which was a big win for companies that wanted to avoid costly and time-consuming class action litigation.

Another important ruling came in the case of Henry Schein, Inc. v. Archer & White Sales, Inc., which was decided in 2019. This case involved a dispute over whether or not a party could be compelled to arbitrate a dispute even if the arbitration agreement explicitly excluded certain types of claims. The Supreme Court ruled that if an arbitration agreement includes language delegating the authority to decide jurisdictional questions to an arbitrator, then the arbitrator should have the power to decide whether the dispute is arbitrable, even if the agreement includes a carve-out for certain types of claims.

More recently, in 2020, the California Supreme Court issued a ruling in the case of OTO, L.L.C. v. Kho, which addressed whether or not California's statutory ban on certain types of arbitration agreements was preempted by the Federal Arbitration Act. The Court ultimately ruled that the state law was preempted, which was seen by many as a victory for companies and employers who had argued that the California law was too restrictive.

Overall, it seems like these recent court rulings have generally been good news for arbitration in civil and commercial law. They have given more power to employers and companies to require arbitration and enforce arbitration agreements, and have limited the ability of parties to avoid arbitration through loopholes or carve-outs in agreements. That being said, there are still some potential downsides to the practice of arbitration, and many people continue to advocate for reforms that would make the process more fair and transparent for all parties involved.