To Ask The Question Is To Answer It . . .
My law professors seemed fond of that old chestnut, "to ask the question is to answer it." Once you know the question presented by the Court of Appeal in Douglass v. Serenivision, Inc., B277574 (2/2 2/18/18) (Hoffstadt, Lui, Chavez) (published), you will know the answer.
Question: Does a party clearly and unmistakably consent to have an arbitrator decide his own jurisdiction when that party does not object to the arbitrator's jurisdiction in its answer to the arbitration petition, informs the arbitrator that it is "voluntarily" "submit[ing]" to the arbitrator's jurisdiction, appears at multiple prehearing conferences, formally asks the arbitrator to impose a bond requirement on the opposing party, and only after the arbitrator denies that request tells the arbitrator that its submission to jurisdiction was conditional on obtaining that bond?
Answer: On these facts, we conclude that such conduct does constitute clear and unmistakable consent to allow the arbitrator to decide the issue of his own jurisdiction. We further conclude that the party's challenge to the arbitrator's jurisdiction is untimely and that his challenges to the arbitrator's assessment of his jurisdiction and to the ultimate arbitration award are without merit.
Twenty pages of explanation follow the foregone conclusion.
TRIVIA: Who said: "To ask the question is to answer it?" The phrase was used in Supreme Court cases in the 19th century, in opinions authored by Mr. Justice Brewer in In Re Debs, 158 U.S. 564 (1895), and by Mr. Justice Matthews in Heald v. Rice, 104 U.S.737 (1882). Since then, the phrase has appeared in numerous cases.
Comments