Square Peg in a Round Hole: Are Arbitration Motions Really Rule 12 Motions?

Business litigation partner Michael Daly authored an article for the American Bar Association (ABA) that considers how the court has never considered the most fundamental arbitration question of all: What is a motion to compel arbitration?

Daly explains how most courts agree that arbitration motions can be decided based on the written submissions unless there are genuine issues of material fact regarding contract formation, in which case a hearing—or, if requested, a trial—would become necessary. But that does not clearly correspond with the standards applied under Rules 12(b)(1), (b)(3), or (b)(6).

In his article, Daly proposes that rather than force a square peg into a round hole, courts should simply treat them as motions “under” the FAA. He explains that it makes more sense as a linguistic matter, as the statute—not any Federal Rule of Civil Procedure—is the font of authority for filing arbitration motions, staying litigation, and compelling arbitration. There is also no need—procedural, practical, or otherwise—to treat arbitration motions as motions “under Rule 12.” 

The full article is available to ABA subscribers.