The Journal of the Institute for Transnational Arbitration, ITA in Review (Vol. 4, Issue 1 2022)

The history of the Henry Schein, Inc. v. Archer & White Sales, Inc. case shows that some thresholds can be more difficult to cross than others. The parties in Schein spent almost a decade battling over where the battle should take place: court or arbitration.

Even though the case settled prior to resolving all the issues surrounding this battle, the case law left in its wake provides a good summary of the current state of the law regarding the steps in determining arbitrability. The case also highlighted recent questions regarding the long-standing and ubiquitous understanding that incorporating most arbitration rules by reference into an arbitration agreement effectively delegates the arbitrability question to the arbitrators.

This article will discuss the necessary steps in determining the arbitrability question, including certain implicated issues such as the applicable law and the recent questions regarding the delegation of the arbitrability issue to the arbitrators.

To view the full article, please download the PDF below.