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Monday, September 30, 2002
No. 01-800 Howsam v. Dean Witter Reynolds, Inc.


This case is about whether a court or an arbitrator should decide whether a dispute is time-barred under the arbitration rules of the National Association of Securities Dealers. The court below found that the parties in this case had not "clearly and unmistakably" agreed that all disputes, including those about the arbitrability of the dispute, would be decided through arbitration. The court therefore remanded to the District court to determine whether the dispute was time-barred. Apparently the Circuits are split on this question.


Based on my reading of the opinion of the Tenth Circuit below (because FindLaw doesn't have the parties' briefs), I predict that the Court will REVERSE. If the parties agree to resolve "all disputes" by arbitration, and it is the rules of the arbitrators that place the six-year limit, then the dispute is already in arbitration before the question of whether it is time-barred arises. I understand that the rules are technically part of the agreement of the parties, but the rules exist to facilitate arbitration, not court resolution. The purpose of arbitration is to allow parties to agree to private resolution, which unclogs the courts. If the quetion of interpretation of the rules of an arbitrator must be resolved by the courts, that purpose is undermined.