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Expert Analysis

Who Says When Litigation Waives The Right To Arbitrate?

Law360, New York (January 16, 2014, 12:48 AM EST) -- When parties proceed with litigation in court and only belatedly move to compel arbitration, courts have traditionally denied their motions on the ground that the moving party has waived the right to arbitrate.[1] But the U.S. Supreme Court stated in Howsam v. Dean Witter that "the presumption is that the arbitrator should decide 'allegation[s] of waiver, delay, or a like defense to arbitrability.'"[2] The apparent contradiction regarding whether courts or arbitrators decide if a party's litigation conduct has waived the right to arbitrate has arisen in many cases since Howsam was decided in 2002....

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