How Do U.S.

Courts Apply the

Doctrines of Separability and
Competence-Competence?
Miami, April 21, 2021

Copyright © 2021 Holland & Knight LLP. All Rights Reserved

In the U.S., Arbitration is a Matter of
Consent

• Courts will enforce an arbitration agreement according to its

terms.

• In the U.S. parties enjoy extraordinary latitude in structuring their

arbitration agreements.

• Parties must be aware of the consequences of their agreements.

See Restatement of the Law, the U.S. Law of International Commercial and Investor-State Arbitration, Final Draft (April 24, 2019).

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Doctrine of Separability
• Arbitration agreements can be “separable” from the contracts in
which they are included.

• Purpose?
− An arbitrator’s decision that the main agreement is void would
deprive an arbitrator of jurisdiction.
− A court’s decision that the main agreement is valid would deprive the
parties of its arbitration agreement.

• Attacks to the validity of the contract will not necessarily prevent

the arbitration from going forward.

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Doctrine of Competence-Competence

• The arbitral tribunal has the authority to decide its own

jurisdiction.

• In the U.S., this doctrine only has a positive but not a negative
effect.

• Courts still retain jurisdiction to decide “arbitrability” questions,

unless the parties agree otherwise.

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Who Decides the Issue: a Court or the
Tribunal?

• Applications to enforce an arbitration agreement  what review

does a court make before sending the parties to arbitration?

• Application for interim relief in support of arbitration  what

review does a court make of the the arbitrator’s decisions, if any?

• Application for recognition and enforcement of an arbitration

award  what level of deference do courts provide to an
arbitrator’s determinations?

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Separability under U.S. Law
• Attacks to the validity of the contract as a whole are for the
arbitrators to decide  if the arbitration agreement provides so.

− Contract was procured by fraud: Prima Paint Corp. v. Flood &

Conklin Mfg. Co., 388 U.S. 395 (1967).
− Contract was void or voidable: Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440 (2006).

• Attacks to the validity of the arbitration agreement, specifically, are

for a court to decide.

• The issue of whether the contract was ever formed is treated

separately generally, for a court to decide.

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Competence-Competence under U.S.
Law
• Arbitrability: did the parties agree to arbitrate this dispute now?

− Gateway questions or substantive arbitrability issues: dealing with

consent  for the court to decide, except if delegation.

− Non-Gateway questions or procedural arbitrability issues: dealing

with timing or other conditions for the arbitrator to decide.

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002).

• Delegation clauses

− “Clear and unmistakable” evidence: First Options of Chi., Inc. v.

Kaplan, 514 U.S. 938, 947 (1995).

− Is the reference to a set of arbitral rules in the arbitration agreement

“clear and unmistakable” evidence of the parties’ intent to delegate?

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 Katharine Menéndez de la Cuesta is a litigator who handles
international disputes and is based in Holland & Knight's Miami office.
Clients rely on her experience to represent them in international
arbitration proceedings in English and Spanish, and in litigation
matters before U.S. federal and state courts in New York and Florida.
Ms. Menéndez has handled international arbitrations applying the
laws of New York, Florida, Illinois, Spain, France, U.K., Namibia,
Katharine Saudi Arabia, Colombia and Guatemala, among other jurisdictions,
Menéndez and administered by the main arbitral institutions, such as the
International Chamber of Commerce (ICC), International Centre for
Miami Dispute Resolution (ICDR) and International Centre for Settlement of
305-789-7493 Investment Disputes (ICSID). She has acted as Administrative
Katharine.Menendez Secretary of arbitral tribunals, and is a representative for North
@hklaw.com America of the ICC's Young Arbitrators Forum (YAF) for its 2019-2021
mandate.
Ms. Menéndez has been involved in disputes arising out of mergers
and acquisitions (M&A), energy and transportation matters (airport,
mining and rail industries).