2018 | Febrero 26
A recent decision from the 10th Circuit shows there is a whole new way to invalidate an arbitration agreement. In Citizen Potawatomi Nation v. Oklahoma, 2018 WL 718606 (10th Cir. Feb. 6, 2018), the court found the arbitration agreement unenforceable because the parties provided for de novo review of any arbitration award in federal court, which is prohibited under the Hall Street decision from SCOTUS in 2008.
On appeal, the 10th Circuit upended the entire arbitration agreement. It noted that the 2008 Hall Street decision makes clear that parties cannot alter the standard of review in Section 10. It also found that the provision for de novo review could not just be severed, because it was material to the parties’ decision to choose arbitration, as evidenced by a review of the Compact as a whole. As a result, the court found the arbitration agreement as a whole unenforceable.