Supreme Court rules arbitrator should, depending on language, decide arbitrability, but Colorado law might say otherwise?

Earlier this year, the Supreme Court held, in Henry Schein, Inc. v. Archer and White Sales, Inc., held that, depending on the language of the parties’ arbitration agreement, it is for an arbitrator, not a judge in court, to decide questions of arbitrability. The decision involved relatively common language saying, “Any dispute arising under o related to this Agreement (except for actions seeking injunctive relief and disputes related to trademarks, trade secrets, or other intellectual property…) shall be resolved by binding arbitration….” That language is sufficient, the Court held, to invest in the arbitrator, not the judge, the arbitrability of a complaint that sought in part injunctive relief (arguably falling into that language’s exception). The Supreme Court’s decision significantly shifted into arbitration an even larger chunk, as it were, of the kinds of issues that are frequently litigated in these cases. The Supreme Court relied on the Federal Arbitration Act’s broad policy of favoring arbitration.

A recent article in the Colorado Lawyer notes that CRS 13-22-206 of Colorado’s state arbitration act might suggest otherwise, at least as to cases seeking arbitration under state law versus the FAA, which the article notes might be a question. Section 13-22-206 of Colorado’s state law provides, in part, as follows:

Gene Commander, Esq., author of the article, concludes with the helpful suggestion that drafters consider FAA preemption and further draft the agreement to clearly memorialize the parties’ intent as to whether and which arbitrability issues will be decided by a judge versus a court.