The Only Thing Settled About Arbitrability is its Continued Litigatibility
Introduction Although both the United States Supreme Court and the South Carolina Supreme Court often attempt to define arbitrability -- the question of whether a contractual provision purporting to send disputes to arbitration is enforceable -- the case-by-case analysis applied in considering it means that like the Lernaean Hydra , a determination on one set of facts will only spawn numerous other challenges. The South Carolina Court of Appeals' recent decision in Smith v. D.R. Horton, Inc., et al. is the latest in this line of arbitrability cases, affirming a circuit court determination that an arbitration clause in a purchase agreement was unenforceable because it was unconscionable. For this Blog's previous posts chronicling arbitrability decisions and related topics, see Recent Cases on the Reach of the S.C. and Federal Arbitration Acts , Asserting the Right to Compel Arbitration , Arbitrating Arbitrability: Part One of the Effect of Recent SCOTUS Decisions