W6LS, Inc., dba WithU and WithU Loans, et al. v. Joshua Harris, et al.

The Federal Arbitration Act makes an arbitration provision “severable from the remainder of the contract.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2006). A party’s “challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.” RentA-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70 (2010). A delegation provision within an arbitration agreement is severable in the same way. It is “simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other.” Id. at 70. The delegation provision here commits to the arbitrator disputes over the formation, validity, enforceability, and scope of the arbitration agreement, and it contains no choice-of-law term. The formation of the container contracts in which the delegation provision sits is undisputed. The Seventh Circuit held that the delegation provision lacked mutual assent because separate provisions of the arbitration agreement directed the arbitrator to apply tribal law and applicable federal law, when the Tribe had not yet enacted a contract code. The question presented is: Whether a court may hold, based on an alleged defect in separate provisions of a contract whose own formation is undisputed, that no delegation agreement was formed, where the delegation provision itself contains no such defective term and where the party resisting arbitration made no specific showing that the delegation provision itself was never formed.