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LJN NewslettersNewsSectionsThe Bankruptcy Strategist

Bankruptcy Battleground

By Mark G. Douglas
May 30, 2006

Whether an arbitration clause in a contract will be enforced by the bankruptcy courts in accordance with the Federal Arbitration Act has been the focus of numerous court decisions in recent times. The consensus among most courts addressing the issue has been that a bankruptcy court can adjudicate a dispute otherwise subject to binding arbitration if the dispute falls within the court's 'core' jurisdiction. Even so, rulings recently handed down by the Second and Third Circuit Courts of Appeal suggest that the scope of a bankruptcy court's retained discretion in this area may be even less broad than is generally understood. MBNA America Bank, N.A. v. Hill, 436 F.3d 104 (2d Cir. 2006), and Mintze v. American General Financial Services Inc. (In re Mintze), 434 F.3d 222 (3d Cir. 2006), confirm the primacy of arbitration as the favored means of resolving disputes ' even those that fall within the bankruptcy court's 'core' jurisdiction.

The Federal Arbitration Act

The Federal Arbitration Act (FAA) provides that arbitration agreements 'shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' 9 U.S.C. ' 2. A court has the power to stay a proceeding if it determines that an issue is subject to arbitration. In addition, a court may order litigants to proceed to arbitration in the event that one or more parties to an arbitration agreement refuses to comply with it. See 9 U.S.C. ” 3 and 4.

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