Amicus Curiae Brief — Petrobras America Inc., et al., Petitioners v. Transcor Astra Group S.A., et al.

No. 22-518

In The

Supreme Court of the Anited States

&

Vv

PETROBRAS AMERICA INC., e¢ al.,

Petitioners,

Vv.

TRANSCOR ASTRA GROUP S.A., e¢ al.,

Respondents.

@

Vv

On Petition For A Writ Of Certiorari

To The Supreme Court Of Texas

rN

v¥

AMICUS CURIAE BRIEF OF

ANTHONY MICHAEL SABINO IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

4

Vv

ANTHONY MICHAEL SABINO

SABINO & SABINO, P.C.

92 Willis Avenue, 2nd Floor

Mineola, New York 11501

(516) 294-3199

Anthony.Sabino@sabinolaw.com

February 2023

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether, when parties have entered a contract

with an arbitration clause that delegates to the arbitrator questions of arbitrability, the arbitrator — rather

than a court — must decide whether the contract has

been superseded by a subsequent contract.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...............:ccccecccsenereneees i

TABLE OF CONTENTS ............:::sscccccesseseeeeneseres ii

TABLE OF AUTHORITIES .............ccesseesceeeeeeees iv

INTEREST OF AMICUS CURIAE..........c::ccseeeees 1

STATEMENT. ............:ccccssssscccesscecesscesrcesscesseesnenses 1

SUMMARY OF ARGUMENT. ............ceesseeceenenes 2

ARGUMENT. .............cccsesececesecccessssecesecersessenaeeeoees 3

I. REVIEW SHOULD BE GRANTED TO

FULFILL THE PROMISE OF THE FED-

ERAL ARBITRATION ACT. ..........ccccceeeevees 3

II. REVIEW SHOULD BE GRANTED TO

ENSURE THAT COURTS DO NOT NUL-

LIFY CONTRACTUAL TERMS, NOR DE-

PRIVE PARTIES OF THE BENEFIT OF

THEIR BARGAIN. ......ccccccccccceeeseeeeeteeteseoees 6

Il]. REVIEW SHOULD BE GRANTED FOR

REASON THAT THE DECISION BELOW

IS CONTRARY TO THE STRONG FED-

ERAL POLICY FAVORING ARBITRA-

IV. REVIEW SHOULD BE GRANTED FOR

REASON THAT THE DECISION BELOW

IS A JUDICIAL INTERPRETATION WHICH

IMPERMISSIBLY FRUSTRATES ARBI-

TRATION ..........:.:ssessscsesescccseeeeeeeenenseseeeeeess 11

ill

TABLE OF CONTENTS — Continued

Page

V. REVIEW SHOULD BE GRANTED TO

ENSURE THAT COURTS DO NOT DE-

PRIVE PARTIES OF THEIR PREROGA-

TIVE TO DELEGATE “QUESTIONS OF

ARBITRABILITY” TO THE ARBITRA-

lv

TABLE OF AUTHORITIES

Page

CASES

AT&T Mobility LLC v. Concepcion, 563 U.S. 333

(QOL) cee. cecesseccecccceessseesscreneeeeeseesessnsnes 4,6, 7,11, 12

AT&T Technologies, Inc. v. Communications

Workers of America, 475 U.S. 643 (1986).......... 14, 15

American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2018).........:ccsssseeeeessreeees 6, 12,14

Buckeye Check Cashing, Inc. v. Cardegna, 546

USS. 440 (2006) oo... ccceeessssssrerereeseeveeseeeeereesessenees 4

Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213

(1985) .......cccccssesscccessessssccsecsssssccccesscssreeessessessessnreeeeores 6

Epic Systems Corp. v. Lewis, 584 U.S. __ (No.

16-285) (May 21, 2018)............seccccceeee 4,5, 10, 12, 14

First Options of Chicago, Inc. v. Kaplan, 514 US.

O38 (1995)... cccccccccccessssssessecsreseeesesssssssessesssanneaeees 15

Henry Schein, Inc. v. Archer & White Sales,

Inc., 586 U.S. __ (No. 17-1272) (January 8,

QO1Q) .....ccccsssssccssssccceccesssessrsrseeeeessceeeeesseseeeeenes 7,14, 15

Howsam v. Dean Witter Reynolds, Inc., 537 U.S.

TQ (ZLOOD) ....cccccccccccccccccccccesscscsccccsccecssssceccceeseeeers 13,14

Lamps Plus, Inc. v. Varela, 587 U.S. __ (No. 17-

988) (April 24, 2019) .....secscsssserseeccteesesrsotseeeeesnens 8

Mastrobuono v. Shearson Lehman Hutton, Inc.,

514 U.S. 52 (1995) ou... cceesecseeeccceceseseeseeesssseneenensens 4,7

Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614 (1985) ........cssesereeeees 7

Vv

TABLE OF AUTHORITIES — Continued

Page

Morgan v. Sundance, Inc., 596 U.S. __ (No. 21-

328) (May 28, 2022)..........ccsccssssersessseereeseenseresereernnes 4

Moses H. Cone Memorial Hospital v. Mercury

Construction Corp., 460 U.S. 1 (1983)...........0 3, 10

Prima Paint Corp. v. Flood & Conklin Mfg. Co.,

388 U.S. 395 (1967) .......csccccccscsccccessssssessseeeeenenseceeeeees 4

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63

(2O10).......csssssscccesecssssreccesssssseeeecsssseseseeeseressneneseees 6,14

Shearson/American Express Inc. v. McMahon,

482. U.S. 220 (1987) .......csccccssccccsrrreescssseeeeeeensensenees 14

Stolt-Nielsen S.A. v. AnimalFeeds International

Corp., 559 U.S. 662 (2010)......scscsesseesecreeeeeens 6, 8, 14

Viking River Cruises, Inc. v. Moriana, 596 US.

___ (No. 20-1573) (June 15, 2022)..........eeeesreeeeees 8

Volt Information Sciences, Inc. v. Board of Trus-

tees of Leland Stanford Junior University, 489

U.S. 468 (1989) .........ccccscsesseseesssessesssesesseeeeeees 3, 4, 6, 7

STATUTES

Federal Arbitration Act

Q US.C. § 1, et Seq. ....scsssscsssccessecsseceeneeesssenseesonserenes 3

D ULS.C. § Qiiceecccccssccccssscescesssseeesssseeeeeesseneeteereneeeorores 3

D US.C. § Sivcccccccccssscccssseecessssseecsnsseseeesesnneeeeseeeaneoooes 3

D US.G. § Ai cccccscccccccsscrceesessecessssseeeesnrnsenserseaeeossees 3

vi

TABLE OF AUTHORITIES — Continued

RULES

Sup. Ct. R. 37.2 w..csccssceereesserssssssseeneseesenesnenssaesnens

Sup. Ct. R. 37.6 .....scsesesescseeseeeeeeesessseeesseneeneeneenes

OTHER AUTHORITIES

Anthony M. Sabino & Michael A. Sabino, “Law

of the Land: U.S. Supreme Court Upholds

Arbitration Agreements, Despite State Court

Resistance,” 61 Nassau Lawyer 3 (December

Anthony M. Sabino, “Supreme Court [luminates

Enforceability of Arbitration Agreements,”

262 New York Law Journal 4 (July 3, 2019).....

Anthony Michael Sabino, “Awarding Punitive

Damages in Securities Industry Arbitration:

Working For A Just Result,” 27 U. of Rich-

mond L. Rev. 33 (1992)....cccccccssccccsrserssssereeeeeercens

Michael A. Sabino & Anthony M. Sabino, ““Epic’

Decision by Supreme Court Orders Arbitration, Prohibits Class Action,” 259 New York

Law Journal 4 (June 6, 2018)..........ssscceeeeeeeeeees

Page

seseens 1

sevens 1

1

INTEREST OF AMICUS CURIAE

This amicus curiae is a law professor with expertise in arbitration generally, securities arbitration,

commercial law, and commercial arbitration. Furthermore, this amicus curiae has represented parties in arbitration proceedings, frequently chairs arbitrations

for the Financial Industry Regulatory Authority and

other bodies, and regularly lectures on the precise topics found in the pending controversy. This case addresses the interpretation of the Federal Arbitration

Act, and implicates the enforcement of agreements to

arbitrate, and, hence, the proper conduct of arbitration

proceedings in a wide variety of fora. This amicus curiae has a professional and scholarly interest in the

proper application and development of the law in these

domains.

4

v

STATEMENT

This amicus curiae respectfully adopts, in relevant

part, the Statement set forth in the Petition for Certiorari filed by the Petitioners herein, Petrobras America Inc., et al. (hereinafter, “Petitioners”). Petition for a

Writ of Certiorari at 2. This amicus curiae furthermore

1 No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. See

Supreme Court Rule 37.6. Counsel of record received timely notice of the intent to file this brief. See Supreme Court Rule 37.2.

2

joins in Petitioners’ Reasons for Granting the Petition.

Petition for a Writ of Certiorari at 10.

yy

v¥

SUMMARY OF ARGUMENT

Review should be granted for reason that the instant case is an excellent vehicle for affirming the text

of the Federal Arbitration Act, the strong federal policy

favoring arbitration, and the lengthy and consistent

line of precedents upholding that ideal. The decision

below denying the arbitrator the authority to decide

the “gateway” question of determining arbitrability is

unsupported by the statutory regime which empowers

arbitration, frustrates the strong federal policy favoring arbitration, and cannot be reconciled with the

Court’s jurisprudence, which for decades now has robustly upheld the enforceability of arbitral accords

generally, and the validity of parties’ agreements to

delegate “gateway” questions of arbitrability to the arbitrator specifically. Given that the ruling below denigrates the parties’ choice to assign to the arbitrator,

and not a court, the power to decide threshold issues of

arbitrability, it is respectfully suggested by this amicus

curiae that review should be granted.

@

v

3

ARGUMENT

I. REVIEW SHOULD BE GRANTED TO FUL-

FILL THE PROMISE OF THE FEDERAL

ARBITRATION ACT.

Since 1925, arbitration has been regulated, and,

moreover, encouraged, by the Federal Arbitration Act.

9 US.C. § 1, et seg. (“FAA”). The FAA explicitly directs

the courts to enforce agreements to arbitrate, and empowers them to do so by a variety of means.

Foremost in the statutory scheme is Section 2, the

“primary substantive provision of the Act.” Moses H.

Cone Memorial Hospital v. Mercury Construction Corp.,

460 U.S. 1, 24 (1983) (“Moses H. Cone”). The statute

mandates that a written provision in a contract which

calls for the arbitration of controversies “shall be valid,

irrevocable, and enforceable.” 9 U.S.C. § 2 (emphasis

supplied). See Volt Information Sciences, Inc. v. Board

of Trustees of Leland Stanford Junior University, 489

U.S. 468, 474 (1989) (“Volt”). It is noteworthy that the

proviso is stated in the imperative “shall,” and not the

permissive “may” or similar.

Subsequent portions of the FAA also unmistakably work towards the goal of enforcing agreements to

arbitrate. See 9 U.S.C. § 3 (providing for a stay of proceedings for a matter referable to arbitration), § 4 (supplying jurisdiction to compel arbitration), and §9

(establishing a mechanism for confirming and enforcing an arbitration award). See also Volt, supra, 489

US. at 474 (analyzing Sections 2 and 4). In sum and

substance, every aspect of the FAA supports the

4

enforcement of agreements to arbitrate. See AT&T

Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011)

(“Concepcion”).

The Court has repeatedly declared that the aim of

the FAA is to ensure private agreements to arbitrate

are enforced according to their terms. See Mastrobuono

v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57 (1995)

(“Mastrobuono”) (quotation omitted). The Court has

frequently held that the FAA places agreements to arbitrate on “an equal footing with other contracts.” Concepcion, supra, 563 U.S. at 339 (quotations omitted),

citing Buckeye Check Cashing, Inc. v. Cardegna, 546

U.S. 440, 443 (2006). See also Volt, supra, 489 US. at

474 and 478.

The Court has declared that the FAA safeguards

arbitral accords from “judicial interference.” Epic Systems Corp. v. Lewis, 584 U.S. __, __, slip op. at 3 (No.

16-285) (May 21, 2018) (“Epic”). See also Prima Paint

Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404

(1967) (the plain language of the Act evinces a clear

legislative intent to prohibit judicial obstructionism to

arbitration). See also Morgan v. Sundance, Inc., 596

US. __, __, slip op. at 6 (No. 21-328) (May 23, 2022)

(quotation and citation omitted) (the strong federal

policy favoring arbitration acknowledges the FAA’s

commitment to overrule the judiciary’s longstanding

refusal to enforce arbitral accords, and to place such

agreements on the same footing as other contracts).

As a more recent addition to the pantheon of the

Court’s arbitration jurisprudence, Epic confirms that

5

the statutory components of the FAA constitute a cohesive scheme which “require[s] courts to respect and

enforce agreements to arbitrate.” Epic, supra, slip op.

at 5. Quite telling is the closing paragraph of Epic,

wherein the Court characterizes the statutory regime

as a solemn command from Congress “that arbitration

agreements ... must be enforced as written.” Id., slip

op. at 25.

Regrettably, the decision below, as well as certain

of the conflicting cases which swirl about it, may

threaten all or most of the precepts stated above. By

agerandizing to itself the power to decide the vital

“gateway” question of what is arbitrable, a matter

which the parties specifically reserved to the arbitrator, and not a court, the lower court usurped a key element of the parties’ original bargain.

When a court refuses to permit the arbitrator to

exercise a power explicitly bestowed by the parties’ arbitral accord, that court denies the parties the benefit

of their bargain, fails to enforce the parties’ agreement

as written, places the arbitral accord on a footing different from — indeed, inferior to — other contracts, and

evinces, at least implicitly, a form of judicial hostility

to arbitration, an animosity which the FAA was expressly intended to extinguish.

Granting review of the decision below will afford

an opportunity to reinforce the inexorable statutory

edict that agreements to arbitrate shall be valid, irrevocable, and enforceable, an overriding legislative command upheld time and again by the Court. Moreover,

6

review of the case at hand will assure that arbitral accords are enforced according to their terms, are on an

equal footing with other contracts, and are safeguarded from judicial interference.

It is respectfully submitted by this amicus curiae

that review should be granted for reason that the case

at bar represents an excellent vehicle for fulfilling the

promise of the FAA.

Il. REVIEW SHOULD BE GRANTED TO EN-

SURE THAT COURTS DO NOT NULLIFY

CONTRACTUAL TERMS, NOR DEPRIVE

PARTIES OF THE BENEFIT OF THEIR

BARGAIN.

It is a “fundamental principle that arbitration is a

matter of contract.” Rent-A-Center, West, Inc. v. Jackson, 561 US. 63, 67 (2010) (“Rent-A-Center”). See also

American Express Co. v. Italian Colors Restaurant, 570

US. 228, 233 (2013) (“American Express”). In relation

thereto, it has long been a bedrock principle of this

Court’s jurisprudence that arbitration is a matter of

consent, not coercion. Stolt-Nielsen S.A. v. AnimalFeeds

International Corp., 559 U.S. 662, 681 (2010) (“Stolt-

Nielsen”), quoting Volt, supra, 489 US. at 479 (quotations omitted). Precisely for these reasons, the Court’s

arbitration landmarks have long affirmed that “the

FAA requires courts to honor parties’ expectations.”

Concepcion, supra, 563 U.S. at 351.

Agreements to arbitrate must therefore be rigorously enforced. Dean Witter Reynolds Inc. v. Byrd, 470

7

US. 213, 221 (1985). See also Henry Schein, Inc. v.

Archer & White Sales, Inc., 586 U.S. __, __-__, slip

op. at 4-5 (No. 17-1272) (January 8, 2019) “Henry

Schein”) (citation omitted) (courts must enforce arbitration contracts according to their terms, and may not

override the parties’ agreement). As with any other

contract, the parties’ intentions control. Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.

614, 626 (1985) (“Mitsubishi”). The proper role of the

courts is to “give effect to the contractual rights and

expectations of the parties,” as gleamed from the arbitral accord. Volt, supra, 489 US. at 479.

Reflecting that arbitral pacts are just like ordinary

contracts, it has long been acknowledged that parties

are generally free to shape their agreements to arbitrate as they see fit. Mastrobuono, supra, 514 US. at

57. See also Concepcion, supra, 563 US. at 344 (“The

point of affording parties discretion in designing arbitration processes” is that it empowers them to adopt

the rules and procedures they deem best suited to their

particular needs.). Thus, in yet another hallmark of the

Court’s arbitration jurisprudence, it is well known that

parties may categorize the controversies they wish to

submit to the arbitrator for resolution. See generally

Mitsubishi, supra, 473 US. at 628 (parties may choose

to include or exclude statutory claims from arbitration,

but are bound to that choice, once made).

Consistent therewith, the Court has quite recently

expressed intolerance for rules or judicial decisions

which unduly circumscribe the freedom of parties to

determine the issues subject to arbitration, and the

8

rules by which the parties shall arbitrate. Viking River

Cruises, Inc. v. Moriana, 596 U.S. ___, __, slip op. at 18

(No. 20-1573) (June 15, 2022), quoting Lamps Plus, Inc.

v. Varela, 587 U.S. __, __, slip op. at 7 (No. 17-988)

(April 24, 2019), and, in particular, mechanisms which

violate the fundamental principle that arbitration is a

matter of consent. Viking, supra, slip op. at 18, citing

Stolt-Nielsen, supra, 559 U.S. at 684. See also Anthony

M. Sabino, “Supreme Court Illuminates Enforceability

of Arbitration Agreements,” 262 New York Law Journal at p. 4, cl. 4 (July 3, 2019) (analyzing Lamps Plus).

The decision below is difficult, if not impossible, to

reconcile with the foregoing axioms. The lower court

seemingly disregarded the fundamental precept that,

like any other contract, an agreement to arbitrate is to

be rigorously enforced according to its terms. In the

instant case, this would include the parties’ original

agreement to refer all questions of arbitrability to the

arbitrator, and not a court. By claiming the power to

resolve “gateway” questions of arbitrability for itself,

the court below acted contrary to the Court’s precedents, as set forth herein above, choosing instead to

substitute judicial intervention for contractual stipulations, consent, and the expectations of the parties.

In all likelihood, certain aspects of the arbitral accord at issue herein should be beyond question. The

first is that the agreement to arbitrate was arrived at

by consent; it was not imposed by coercion. Second, the

signatories contracted to arbitrate all controversies,

with the arbitrator, and not a court, resolving “gateway” questions of arbitrability. Third and last, no doubt

9

the parties expected a court to honor the terms of their

arbitral accord.

The decision below confounds both the terms of

that arbitral pact and the parties’ expectations. The

lower court set aside the words agreed to, and imposed

new terms, hitherto unknown to or at least unexpected

by the parties. The court below invested itself with the

authority to adjudicate “gateway” questions of arbitrability, contrary to the more limited role for a court apparently contracted for and presumed by the parties.

The decision below irrevocably alters the means by

which the parties agreed to resolve their differences.

It is respectfully submitted by this amicus curiae

that the decision below is antithetical to the arbitration jurisprudence of the Court, including, but not limited to, the maxims that arbitration is a matter of

contract, contracts to arbitrate must be enforced according to their terms, and the expectations of the contracting parties are to be honored. As such, the case at

bar is an excellent vehicle for the Court to ensure that

courts do not nullify contractual terms, nor deprive

parties of the benefit of their bargain.

Ill REVIEW SHOULD BE GRANTED FOR

REASON THAT THE DECISION BELOW IS

CONTRARY TO THE STRONG FEDERAL

POLICY FAVORING ARBITRATION.

A long and unbroken line of this Court's arbitration landmarks informs us that, well into the opening decades of the Twentieth Century, there was

10

widespread judicial hostility towards arbitration as an

alternative to traditional litigation. Not long ago, the

Court reminded that, once upon a time, “courts routinely refused to enforce agreements to arbitrate” or

found other means to undermine their effectiveness.

Epic, supra, slip op. at 5.

The strong federal policy validating arbitration

closed that unfortunate chapter in American law. Moses H. Cone, supra, 460 U.S. at 24. See also Anthony

Michael Sabino, “Awarding Punitive Damages in Securities Industry Arbitration: Working For A Just

Result,” 27 U. of Richmond L. Rev. 33, 34-39 (1992)

(summarizing the then-extant landmarks announcing

the strong federal policy favoring arbitration). Consonant with that mandate, for many decades now the

Court has repeatedly and consistently put aside obstacles to the fulfillment of the robust policy favoring arbitration. See generally Epic, supra, slip op. at 16 (“In

many cases over many years, this Court has heard and

rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes.”).

The decision below is untethered from the strong

federal policy favoring arbitration. In contravention of

that policy, and the legislative mandate which codified

it nearly one hundred years ago, the court below waylaid the instant controversy from the parties’ chosen

path of arbitration, redirecting them to litigation, an

option which they had eschewed in their original pact.

The actions of the lower court thwarted contractual

terms stipulating arbitration for the resolution of all

controversies, precisely, questions of arbitrability, and

11

thereby frustrated the expectations of the parties as

signatories to that arbitral accord. All this is inapposite to the strong federal policy favoring arbitration.

It is respectfully submitted by this amicus curiae

that the decision below is at odds with the strong federal policy favoring arbitration. As such, the case at bar

is an excellent vehicle for the Court to uphold that very

policy.

IV. REVIEW SHOULD BE GRANTED FOR

REASON THAT THE DECISION BELOW IS

A JUDICIAL INTERPRETATION WHICH

IMPERMISSIBLY FRUSTRATES ARBI-

TRATION.

Consistently, and without hesitation, the Court

has, time and again, set aside judge-made law which

frustrates agreements to arbitrate. See Concepcion, supra, 563 U.S. at 340-41. In dismantling one such obstacle to arbitration, that one emanating from a state

tribunal, the Court warned that judicial hostility towards arbitration “manifest[s] itself in a great variety

of devices and formulas.” Jd. at 342 (quotations and citations omitted). Given that Concepcion’s most powerful lessons have already been well illustrated in the

arguments preceding this one, there is no need to regurgitate them here.

The salient point to be made at this juncture is

that the axiom announced in Concepcion held no ambiguity. It pronounced that whenever judicial interpretations from whatever source prohibit or impede

12

arbitration, “the analysis is straightforward: The conflicting rule is displaced by the FAA.” Id. at 341. Concepcion provides the rule for decision in the case at bar,

as it has in other, recent arbitration landmarks. See

American Express, supra, 570 U.S. at 238 (“Truth to

tell,” Concepcion “all but resolves” the question.).

The decision below is little different from the state

court construct disavowed in Concepcion. The former

suffers from the same flaws as the latter: it is antithetical to the strong federal policy favoring arbitration; it

usurps the contractual terms of the parties’ arbitral accord; and it defeats the parties’ expectations.

Refuting the lower court’s ruling in the case at bar

is required, not merely for the present, but with a view

towards the future. Even as the FAA approaches its

centennial, “remnants of [a] ‘litigation only’ ideology

occasionally crop up” in the form of judicially crafted

obstacles to arbitration. Anthony M. Sabino & Michael

A. Sabino, “Law of the Land: U.S. Supreme Court Upholds Arbitration Agreements, Despite State Court Resistance,” 61 Nassau Lawyer at p.3 cl. 2 (December 2011).

Small wonder then, that, not long ago, the Court

reaffirmed its obligation to guard against “new devices” intended to confound agreements to arbitrate.

Epic, supra, slip op. at 9, quoted by Michael] A. Sabino

& Anthony M. Sabino, “‘Epic’ Decision by Supreme

Court Orders Arbitration, Prohibits Class Action,” 259

New York Law Journal at p. 4, cl. 4 (June 6, 2018).

The instant matter is the latest test of the Court’s

commitment to the ideals exemplified in its arbitration

13

jurisprudence. Negating or, at the least, reviewing the

decision below is imperative, not merely for the sake of

today, but to assure that judicial manifestations hostile

to arbitration, but yet to be conceived, shall not survive

the Court’s scrutiny.

It is respectfully submitted by this amicus curiae

that the holding of the court below is yet another judicial construct irremediably opposed to the text of the

FAA, and the strong federal policy favoring arbitration.

As such, the case at bar is an excellent vehicle for the

Court to ensure that judicial interpretations which impermissibly frustrate arbitration are not allowed.

V. REVIEW SHOULD BE GRANTED TO EN-

SURE THAT COURTS DO NOT DEPRIVE

PARTIES OF THEIR PREROGATIVE TO

DELEGATE “QUESTIONS OF ARBITRA-

BILITY” TO THE ARBITRATOR.

It is a basic tenet of the Court’s arbitration jurisprudence that “questions of arbitrability” are ordinarily for a court to decide. Howsam v. Dean Witter

Reynolds, Inc., 537 US. 79, 83 (2002) (““Howsam”). Yet

the Court issued a contemporaneous warning that this

postulation is to be applied narrowly, and then solely

to prevent the injustice of forcing arbitration upon a

party that had never consented to same. Id. at 83-84

(cautioning that not every threshold or “sateway” controversy amounts to a “question of arbitrability”).

The foregoing is offset by a rule of equal efficacy;

parties to an arbitral accord “may choose who will

14

resolve specific disputes.” Stolt-Nielsen, supra, 559 US.

at 683 (emphasis supplied). See also Henry Schein,

supra, slip op. at 4 (citation and internal quotations

omitted) (“[Plarties may agree to have an arbitrator

decide not only the merits of a particular dispute but

also ‘gateway’ questions of arbitrability.”). Accordingly,

parties to an arbitral pact enjoy the liberty of delegating questions of arbitrability to the arbitrator, provided they do so in clear and unmistakable terms.

Howsam, supra, 537 U.S. at 83, quoting AT&T Technologies, Inc. v. Communications Workers of America, 475

US. 643, 649 (1986) (“AT&T Technologies”) (quotation

omitted). See also Rent-A-Center, supra, 561 U.S. at 68-

69 (“We have recognized that parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability.’”).

It is not surprising that precedent allows parties

to diverge from the ostensible norm, and delegate

questions of arbitrability to the arbitrator. For decades

now, the Court has looked on with approval as parties

have entrusted arbitrators with the power to decide

issues arising under solemn and complex statutory

schemes, such as the federal securities laws, Shearson/

American Express Inc. v. McMahon, 482 U.S. 220, 238

(1987), the Racketeer Influenced and Corrupt Organizations Act, id. at 242, and the federal antitrust laws.

American Express, supra, 570 US. at 233-34. See

also Epic, supra, slip op. at 16 (summarizing the above

and additional precedents “reject[ing] efforts to conjure conflicts” between the FAA and other federal statutes). Provided it is clearly and unmistakably stated,

the parties’ delegation of questions of arbitrability to

15

the arbitrator is indistinguishable from these other, far

reaching assignments of adjudicative authority to arbitrators.

Who determines questions of arbitrability turns

upon “what the parties agreed to about that matter.”

First Options of Chicago, Inc. v. Kaplan, 514 US. 938,

943 (1995) (“First Options”) (emphasis in the original).

See also AT&T Technologies, supra, 475 U.S. at 649-50

(parties may agree to submit questions of arbitrability

to the arbitrator, and not a court). The primacy accorded to the choice of the parties is firmly grounded

in “the fact that arbitration is simply a matter of contract,” First Options, supra, 514 US. at 943, and arbitral pacts, “like other contracts, are enforced according

to their terms.” Jd. at 947 (quotations and citations

omitted). See also Henry Schein, supra, slip op. at 5

(“[A] court may not decide an arbitrability question

that the parties have delegated to an arbitrator.”).

In sum, the Court’s arbitration jurisprudence makes

the first priority determining what the parties agreed

to with regard to who decides questions of arbitrability.

If it appears that the parties have delegated questions

of arbitrability to the arbitrator, the next step is to confirm that such a delegation was expressed in clear and

unmistakable terms.

Unfortunately, the decision below cannot be easily

squared with the precepts set forth herein above. For

one, it appears that the lower court unjustifiably disregarded the parties’ original agreement to refer all

questions of arbitrability to the arbitrator, and not a

16

court. In setting aside that fundamental component of

the seminal accord, the court below irreparably harmed

the parties’ freedom to craft the arbitral process to

their liking. Furthermore, this unwarranted judicial

intervention provoked an outcome clearly at odds with

the parties’ original agreement, by expropriating from

the arbitrator the authority to resolve a pivotal threshold issue, and instead bestowing same upon a judicial

officer. Lastly, the axioms discussed herein above sit in

counterpoise; yet, the lower court upset that fine balance, by abruptly tipping the scales toward a court,

contrary to the parties’ evident choice that the arbitrator should determine “gateway” questions of arbitrability.

It is respectfully submitted by this amicus curiae

that the decision below misapprehends the Court’s arbitration jurisprudence regarding who decides questions of arbitrability, fails to recognize the ability of

parties to contractually delegate the determination of

such issues to the arbitrator, and unjustifiably amplifies judges’ discretion to decide questions of arbitrability. As such, the case at bar is an excellent vehicle for

the Court to augment its existing jurisprudence, and

thereby ensure that courts do not deprive parties of

their prerogatives to delegate “gateway” questions of

arbitrability to the arbitrator.

ry

v

17

CONCLUSION

Respectfully, for all the reasons set forth herein

above, it is suggested by this amicus curiae that the

Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

ANTHONY MICHAEL SABINO

SABINO & SABINO, P.C.

92 Willis Avenue, 2nd Floor

Mineola, New York 11501

(516) 294-3199

Anthony.Sabino@sabinolaw.com

February 2023