Delaware Business Litigation Report

The Court Of Chancery Addresses Conflicting Forum And Arbitration Provisions In Related Contracts

Greenstar IH Rep, LLC v. Tutor Perini Corp., C.A. No. 12885-VCS (February 23, 2017)

The Court of Chancery often addresses the question of who, as between the Court and an arbitrator, should decide whether certain disputes are arbitrable. The analysis of this substantive arbitrability question is complicated where, as in this case, the parties’ relationship is governed by multiple contracts containing different choice of law, choice of forum, and dispute resolution provisions.  In short, under Willie Gary, where the relevant contract generally refers all disputes to arbitration, and incorporates a set of rules for the arbitrator to follow, the arbitrator, not the Court, will decide substantive arbitrability.  However, under McLaughlin, the Court still will not send the question of substantive arbitrability to the arbitrator where it is clear that only frivolous arguments support arbitration of a particular dispute.      

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