law-arbitration-issues-for-the-court (rather than the arbitrator) | threshold or gateway issues to be
determined by the court / judge, not the arbitrator | Texas Supreme Court Arbitration Jurisprudence |
FAA | TAA
ARBITRATION-RELATED ISSUES / MATTERS FOR THE COURT, RATHER
THAN THE ARBITRATOR
NONSIGNATORIES: WHEN MUST THEY ARBITRATE?
Similarly, we have concluded that whether an arbitration agreement binds a nonsignatory is a
gateway matter to be determined by the court, rather than the arbitrator, unless the parties
clearly and unmistakably provide otherwise. In re Weekley Homes, L.P., 180 S.W.3d 127, 130
(Tex. 2005); see also In re Labatt Food Serv., L.P., 279 S.W.3d. 640, 643 (Tex. 2009) (when
“arbitration agreement is silent about who is to determine whether particular persons are bound
by the agreement, courts, rather than the arbitrator, should determine the issue”).
In re Morgan Stanley & Co, Inc. No. 07-0665 (Tex. Jul. 3, 2009)(Medina) (arbitration vs. litigation: legal
capacity of party to arbitration agreement, does the court or the arbitrator decide the issue?)
CONTESTING SCOPE OF PROVISION OR DENYING AGREEMENT EXISTS --> COURT DECIDES
When a party disputes the scope of an arbitration provision or raises a defense to the provision, the
trial court, not the arbitrator, must decide the issues. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.
S. 440, 444 (2006). And “[w]hen Texas courts are called on to decide if disputed claims fall within the
scope of an arbitration clause under the Federal Act, Texas procedure controls that determination.”
Tipps, 842 S.W.2d at 268.
DISCOVERY PRIOR TO ARBITRATION (OR A RULING ON WHETHER ARBITRATION SHOULD BE
Pre-arbitration discovery is expressly authorized under the Texas Arbitration Act when a trial court
cannot fairly and properly make its decision on the motion to compel because it lacks sufficient
information regarding the scope of an arbitration provision or other issues of arbitrability. See Tex. Civ.
Prac. & Rem. Code §§ 171.023(b), 171.086(a)(4),(6).
This, however, is not an authorization to order discovery as to the merits of the underlying controversy.
Motions to compel arbitration and any reasonably needed discovery should be resolved without delay.
Tipps, 842 S.W.2d at 269. In Re Houston Pipeline Co., LP, No. 08-0800 (Tex. 2009)(per curiam)
(discovery orders and motion to compel arbitration)(interaction of federal FAA and state procedural law
and TAA) (trial court ordered to rule on motion to compel arbitration, and to lift prearbitration discovery
orders found excessively broad).
IN RE HOUSTON PIPE LINE COMPANY, L.P., ET AL.; from Victoria County;
13th district (13-07-00299-CV & 13-07-00362-CV, 269 SW3d 90,
08-26-08 Opinion of the Thirteenth Court of Appeals)
stay order issued October 17, 2008, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.
Per Curiam Opinion [pdf - 4 pages]