Arbitration and Arbitrability: Toward an Expectation Model

53 Pages Posted: 21 May 2007

See all articles by Mark Berger

Mark Berger

University of Missouri at Kansas City - School of Law


The process of arbitration has been transformed by a series of Supreme Court decisions that have increased the enforceability of arbitration awards. Beyond that, the Supreme Court has also taken steps to ensure the enforceability of promises to arbitrate. These latter arbitrability issues raise questions as to who will decide whether an enforceable agreement to arbitrate has been made and what standard shall be applied in making that determination. This article explores the arbitrability question in the wide variety of settings in which it occurs, including post-contract disputes, successor parties, and the separability doctrine which focuses on challenges to the entire contract containing the arbitration provision. Also explored are the differing standards used to determine whether a substantive dispute is arbitrable on the merits and whether procedural preconditions to arbitration have been satisfied. This article identifies an expectation model as the premise upon which the Supreme Court's arbitrability principles have been based, and argues that it appropriately focuses on logical inferences of the parties' intent arising from their agreement as the basis for resolving arbitrability disputes. Reprinted with the permission of the Baylor Law Review.

Keywords: Arbitrate, Arbitration, Arbitrability, Agreement to arbitrate, Arbitration agreement, Enforcement, Enforceability, Enforceable, Post-contract dispute, Procedural preconditions, Expectation, Contract, Successor

JEL Classification: D74, J52, K31

Suggested Citation

Berger, Mark, Arbitration and Arbitrability: Toward an Expectation Model. Baylor Law Review, Vol. 56, p. 753, 2004, Available at SSRN:

Mark Berger (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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