March 12, 2019 Articles

Understanding Prima Paint’s Severability Rule

A detailed explanation of a basic, but often misunderstood, rule under substantive federal arbitration law.

By Charles E. Harris II

A fundamental rule of the federal substantive law of arbitrability is that an arbitration provision is severable from the remainder of the contract and thus separately enforceable. Under this rule, commonly referred to as Prima Paint’s severability rule, an arbitrator must decide a challenge to the enforceability of the contract as a whole; conversely, a challenge explicitly directed to the enforceability of an arbitration provision within that contract is a substantive question of arbitrability for judicial determination. While the severability rule seems straightforward enough, courts have misapplied it at times, and it often confuses attorneys. In this article, we discuss the origin of the rule and its correct application. We then examine two recent decisions that illustrate how to properly apply the principle, Rogers v. SWEPI LP, 2018 WL 6444014 (6th Cir. Dec. 10, 2018), and Peeler v. Rocky Mountain Log Homes Canada, Inc., 431 P.3d 911 (Mont. 2018).

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