Who Decides? Delegating Arbitrability

The severability principle is a fundamental legal doctrine established by the U.S. Supreme Court, dictating that an arbitration or delegation provision is viewed as a separate, "severable" agreement from the remainder of the contract.

In the context of delegation disputes—where parties disagree over whether an arbitrator or a court should decide if a case is subject to arbitration—this principle determines who has the authority to rule on the contract’s validity.

How the Principle Operates

Under the severability principle, the "who decides" question generally follows these rules:

• Default to the Arbitrator: If a party challenges the validity of the contract as a whole (but not the delegation clause specifically), the arbitrator must decide the issue of the contract’s validity in the first instance.

  
  

• Court Intervention: A federal court must consider a challenge only if that challenge specifically targets the "precise agreement to arbitrate" (the delegation clause). A party seeking to stay in court cannot simply attack the entire contract; the party must "directly challenge" the delegation provision.

  
  

The "Equally Applicable" Exception

A critical refinement to this principle, emphasized in both Coinbase, Inc. v. Suski. 602 U.S. 143 (2024) and Avery v. TEKsys, 151 F.4th 911 (9th Cir. 2026) is that where a challenge applies "equally" to the entire contract and to the delegation provision, the court must address that challenge.

1. Contract Supersession (Coinbase): When parties have two conflicting contracts—one with a delegation clause and a later one with a court forum selection clause—the court must decide which contract governs. In this scenario, the dispute is fundamentally about "whether there is an agreement to arbitrate" at all, a question that traditional contract principles leave to the courts.

   
   

2. Procedural Fairness Challenges (Avery): In Avery v. TEKsys, the Ninth Circuit held that the district court properly ruled on the enforceability of an arbitration agreement because the plaintiffs' challenge—based on misleading communications under Federal Rule of Civil Procedure 23(d)—applied equally to the whole contract and the delegation provision.

   
   

Summary

While the severability principle generally protects the arbitrator's jurisdiction, the court has jurisdiction to decide if the party seeking to avoid arbitration directly challenges the validity of the delegation clause or presents a challenge that logically invalidates both the contract and the delegation clause simultaneously.