March 03, 2021 International Litigation & Dispute Resolution

Antecedent Delegation Agreement Concerning a Non-Signatory to an Arbitration Agreement

The “Russian nesting doll” problem remains unresolved.

By Gilbert Samberg

The U.S. Supreme Court (SCOTUS) recently denied certiorari in Piersing v. Domino’s Pizza Franchising LLC, 20-695 (Jan. 25 2021) and dismissed its own writ of certiorari as “improvidently granted” in Henry Schein, Inc. v. Archer & White Sales, Inc., 592 U.S. ___ (Jan. 25 2021). Both cases concerned a non-signatory of an arbitration agreement seeking to enforce the terms of that agreement against a signatory, including terms that arguably concerned whether arbitrability issues in that context were delegated to an arbitrator for adjudication in the first instance. And both arguably offered true threshold questions in that regard—e.g., who decides the delegation issue itself. 

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