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Judicial estoppel prevents a party from arguing two opposite positions in separate proceedings. Is there a similar doctrine that applies to argumentation in the same brief? Or is this so basic as to just be “common sense”?

Concrete example:

There is a dispute over which of two separate arbitration agreements, with material differences, are applicable to a pending arbitration. Agreement A delegates threshold questions such as the "applicability, existence, scope, or validity" of the agreement to the arbitrator. Agreement B does not.

One party goes to court and asks for a declaration that Agreement A is applicable to the arbitration and Agreement B is not, relying on the language of the agreements. But it seems there is a catch-22. If Agreement A is applicable, then the court has no authority to decide the request. But if Agreement B is applicable, then the court has authority to decide the request, but the request is necessarily moot.

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    It would be helpful to have a clearer understanding of the example here. Why is the contract supposedly invalid? How is the party relying on its language?
    – bdb484
    Jul 3, 2022 at 0:13
  • Thanks--I edited the question to elaborate on the example. Jul 3, 2022 at 0:59
  • You need a different example, arbitrators always have the power to decide their own jurisdiction no matter what the agreement says.
    – Dale M
    Jul 3, 2022 at 3:46
  • @DaleM No, that's not true. An arbitration agreement is a contract. While the default rule is that arbitrability is for a court to decide, the parties are free to delegate jurisdictional issues to the arbitrator or reserves them for a court. "Although the scope of an arbitration clause is generally a question for judicial determination, the parties may, by clear and unmistakable agreement, elect to have the arbitrator, rather than the court, decide which grievances are arbitrable." Rodriguez v. Am. Techs., Inc., 136 Cal. App. 4th 1110, 39 Cal. Rptr. 3d 437 (2006). Jul 3, 2022 at 15:00
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    @JoshJohnson Ah yes, I forgot the Us does this differently from everywhere else in the world.
    – Dale M
    Jul 3, 2022 at 23:29

2 Answers 2

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Judicial estoppel prevents a party from arguing two opposite positions in separate proceedings. Is there a similar doctrine that applies to argumentation in the same brief?

No.

The general rule is that a party is permitted to argue inconsistent positions in the alternative within a brief. When a party does so without expressly saying so, it is assumed that they are arguing in the alternative unless the party clearly indicates otherwise (and is just being illogical).

But the law in the context of arbitration is a special case that doesn't align perfectly with the general rule, and makes different distinctions sometimes.

Under the substantive law of arbitration clause validity, sometimes a party can be forced to arbitrate even if there is a possibility that the underlying contract is unenforceable, with the arbitrator making that decision. But, a party cannot be forced to arbitrate in every case where the validity of the underlying alleged agreement is in doubt, simply because an agreement, on its face, contains or references an arbitration agreement.

Under the Federal Arbitration Act, certain preliminary decisions are vested in the courts even if a written arbitration purports to provide otherwise, if a party choses to raise those issues. A dispute over which of two significantly different competing arbitration agreements applies to an issue between the parties could be such a circumstance.

Thus, a term that provides that "delegates threshold questions such as the 'applicability, existence, scope, or validity' of the agreement to the arbitrator," is partially void as a matter of public policy under the Federal Arbitration Act, although some of its retains its validity.

For example, you can't delegate the question of the existence of an arbitration agreement to an arbitrator if that question is disputed, even if the contract says otherwise.

In arbitration cases, there is a rather elaborate jurisprudence governing what issues are for a court to decided and what are for an arbitrator to decision when the right of a party to arbitrate, and/or the validity of the underlying contract, are disputed, that makes some very fine distinctions between different kinds of arguments.

For example, if a party claims that he never had dealings with a party that presents an unsigned document that is a contract and also asserts that this party is bound to an arbitration agreement, that question can be decided by a court.

But, if a party signed an agreement with a plain vanilla arbitration clause but claims it is unenforceable because it was induced by duress or undue influence, the arbitration will usually go forward with the arbitrator deciding the validity of the contract.

When a decision is decided by a court, or by an arbitrator, is not easily summarized or manifestly obvious without a review of the relevant case law which is voluminous and intricate. See, e.g., Samson v. NAMA Holdings, LLC, 637 F.3d 915, 923 (9th Cir. 2011); Santich v. VGG Holding Corp., 2019 CO 67 ¶ 6 (June 24, 2019); N.A. Rugby Union, LLC v. U.S. of Am. Rugby Football Union 2019 CO 59, ¶¶ 20-22, 442 P.3d 859, 863-864 (June 17, 2019);enter image description here;enter image description here;enter image description here

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  • What is meant by the parenthetical "and is just being illogical"? Feb 18, 2023 at 0:26
  • @Seekinganswers Every once and a while someone will state in a complaint, for example, that the defendant did run the red light and that the defendant didn't run the red light simultaneously, even though that is not possible and the complaint makes definitively clear that they allege that both inconsistent things both happened. Usually, when this happens, it is due to a filing by a pro se party with a mental health issue.
    – ohwilleke
    Feb 18, 2023 at 1:18
  • So usually when this happens like in the example you gave it would have been submitted by the defendant themselves and prepared on their own behalf? At first as i was reading the example i assumed in the way that it referred to the defendant in third person that you were envisioning filings by the prosecution but that seems to be contradicted... (No meta jest intended) Feb 18, 2023 at 2:01
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The example you outline has little or nothing to do with judicial estoppel or inconsistencies in a brief. Deciding which arbitration agreement binds the parties is different from deciding under the terms of that agreement the underlying dispute.

A court's ruling that agreement A is applicable falls short of deciding any matters that this agreement delegates to the arbitrator. If the court rules instead that agreement B is applicable, it simply means that the party's request is denied (rather than moot). Neither possible ruling infringes arbitration.

The notion of mootness is that the need for adjudication of an issue disappears because, as a consequence of a prior ruling, this issue becomes irrelevant or pointless.

As for the initial question, I doubt that argumentation inconsistencies --in a brief or at a hearing-- warrant or are given a doctrine name.

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    "A court's ruling that agreement A is applicable falls short of deciding any matters that this agreement delegates to the arbitrator." But Agreement A expressly requires arbitration of "any and all Claims regarding the applicability of this arbitration clause". Such a ruling would seem to squarely fall within the scope of the clause. Jul 3, 2022 at 15:01
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    A case nay become moot because of a change in the facts as well as a prior ruling. For example a defamation case may become moot when a party dies, in those places where such claims do not survive. A claim for reinstatement on an improper dismissal may become moot when the plaintiff secures other better employment, or dies. And so on. Jul 3, 2022 at 16:39
  • @JoshJohnson "Agreement A expressly requires arbitration of "any and all Claims regarding the applicability of this arbitration clause"." That term in and of itself does not preclude the possibility that a narrower, more explicit, and/or subsequent agreement B supersedes and replaces A. Alternatively, the parties' nonsense or sloppiness of forming two such conflicting agreements is tantamount to "hav[ing] not agreed with respect to a term that is essential", in which case "a term which is reasonable in the circumstances is supplied by the court". Restatement (Second) of Contracts §204. Jul 3, 2022 at 18:39
  • @DavidSiegel "A case nay become moot because of a change in the facts". Sure, that is a wider-encompassing characterization of mootness. I was thinking only in the OP's context, which focuses on jurisdiction and rulings rather than a change of facts beyond court or quasi-judicial proceedings. Jul 3, 2022 at 18:44
  • @JoshJohnson Under the Federal Arbitration Act, certain preliminary decisions are vested in the courts even if a written arbitration purports to provide otherwise, if a party choses to raise those issues.
    – ohwilleke
    Jul 4, 2022 at 22:38

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