Fifth Circuit: Arbitrator Should Determine Arbitrability

In Agere Systems Inc. v. Samsung Electronics Co., Ltd., (No. 07-40984), the Fifth Circuit held that the question of arbitrability should be decided by an arbitrator. The dispute between Agere Systems and Samsung Electronics arouse out of five patent cross-licensing agreements (dated 1990, 1995, 1999, 2000, and 2006).

In 2006, Agere sued Samsung for breach of the licensing agreement and Samsung responded by invoking a mediation clause contained in the 2000 agreement. After the mediation process failed, Samsung moved to compel arbitration, citing an arbitration clause in the same agreement. The district court denied the request and Samsung appealed. However, because the 2000 agreement provided that “an arbitrator was to determine the questions of arbitrability,” the Fifth Circuit reversed and remanded.