News Release

December 20, 2023
ALF Urges Supreme Court To Enforce Arbitrator Delegation Clauses

Question Presented:

Whether courts must respect the parties’ decision to delegate questions of arbitrability to the arbitrator when a later contract might modify an earlier one
"The many benefits of arbitration are lost if parties are required to litigate arbitrability in court despite delegating that issue to the arbitrator."
— Atlantic Legal Foundation
The Supreme Court repeatedly has recognized that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., embodies a strong federal policy requiring judicial enforcement of private-party agreements to resolve disputes through binding arbitration, which usually is speedier, more efficient, and less expensive than litigation. To facilitate these benefits, arbitration agreements often contain a “delegation clause” that assigns threshold questions of arbitrability to the arbitrator.

Case Background

In Coinbase v. Suski, No. 23-3, the Supreme Court will address whether courts must respect the parties’ decision to delegate questions of arbitrability to the arbitrator when a later contract does not address arbitration or delegation. The arbitration agreement at issue, including its delegation clause, was part of a subsequently modified User Agreement between the Coinbase crypto-currency exchange and Coinbase account holders. The account holders have filed a putative class action challenging the manner in which Coinbase conducted a sweepstakes. The Ninth Circuit affirmed a district court’s denial of Coinbase’s motion to compel arbitration.

ALF has filed an amicus brief urging the Court to uphold the arbitration agreement’s delegation clause. The brief was authored for ALF by Felix ShafirJohn F. Querio, and Scott P. Dixler of Horvitz & Levy LLP.

ALF's Amicus Brief

ALF’s brief argues that by declining to enforce the arbitration agreement’s delegation clause, the Ninth Circuit has subjected the parties to the very type of litigation that they agreed to avoid. The brief explains that delegating disputes over arbitrability to the arbitrator is a common way of streamlining dispute resolution. But that objective is defeated, and the Federal Arbitration Act is violated, where as in Coinbase, questions about the validity and scope of an arbitration provision are delegated to the arbitrator but adjudicated by a court.
Media Contact: Larry Ebner | Tel: 202-349-1421
About the Atlantic Legal Foundation

For more than 46 years, the Atlantic Legal Foundation, a national, nonprofit, nonpartisan, public interest law firm, has advocated in the Supreme Court, federal courts of appeals, and state appellate courts for individual liberty, free enterprise, property rights, limited & responsible government, sound science in judicial & regulatory proceedings, and effective education, including parental rights and school choice.
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