Trends in international arbitration: US Supreme Court decisions 2015 to 2025

Scope of the Federal Arbitration Act

The Supreme Court decided several cases in the last decade that clarified the scope of the Federal Arbitration Act (“FAA”). In particular, the Supreme Court stated several times that arbitration agreements should be on equal footing with other contracts. 

In Morgan v. Sundance, Inc., 596 U.S. 411 (2022), the Supreme Court unanimously held that the FAA’s policy favoring arbitration does not permit courts to condition a waiver of the right to arbitrate on a showing of prejudice to the opposing party. In Morgan, a party waited eight months into litigation to enforce an arbitration agreement, and the counterparty argued that the movant had waived its right to arbitrate. The party opposing arbitration also argued they would be prejudiced by enforcement of the agreement given the stage of litigation. 

The Supreme Court reversed the court of appeals’ decision, which was based on a finding of prejudice, reasoning that no showing of prejudice was required because whether someone intentionally relinquishes a right to arbitration is determined by their actions, not any effect on the opposing party. The Court also clarified that “[t]he federal policy is about treating arbitration contracts like all others, not about fostering arbitration.” 

Earlier, in Kindred Nursing Centers LP v. Clark, 581 U.S. 246 (2017), the Supreme Court held that a Kentucky state doctrine that required a power of attorney to contain a clear statement in order to allow an agent to commit its principal to an arbitration agreement was preempted by the FAA since it put arbitration agreements on a different footing from other contracts.

Similarly, in Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018), the Court resolved a trio of cases¹ where employees sought to litigate Fair Labor Standards Act claims through class actions, despite having employment contracts requiring individualized arbitration. The employees argued that Section 2 of the FAA, also known as the “savings clause,” which states that an arbitration agreement is enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract” permits courts to invalidate an arbitration agreement if it violates another federal law, and that interpreting the arbitration agreements as requiring individual actions violates the National Labor Relations Act (“NLRA”), which empowers employees to take collective action against employers. 

The Court rejected this argument, holding that the FAA requires enforcement of the arbitration agreement’s terms and that, because the NLRA did not explicitly mention class action lawsuits, it could not be read as displacing the FAA. As it had emphasized in other recent FAA cases, the Court focused on harmonizing the FAA with other laws, but from the starting point of strict adherence to the FAA’s mandate that federal courts enforce arbitration agreements.

Compelling arbitration

The Supreme Court also decided several cases that clarified when and how courts might compel arbitration.

In GE Energy Power Conversion Fr. SAS, Corp. v. Outokumpu Stainless USA, LLC, 590 U.S. 432 (2020), the Supreme Court unanimously upheld the use of state law equitable estoppel doctrines to compel agreement non-signatories to arbitration because the FAA is silent on non-signatory enforcement of arbitration agreements based on domestic doctrines, so there is no conflict or preemption. 

Justice Clarence Thomas wrote, “[T]he Convention requires courts to rely on domestic law to fill the gaps; it does not set out a comprehensive regime that displaces domestic law.” In this closely-watched case, Outokumpu’s predecessor had entered into a series of contracts with F.L. Industries, each of which contained an arbitration agreement requiring arbitration in Germany, subject to German law. F.L. Industries subcontracted with GE Energy as a parts supplier, and when those parts allegedly failed, Outokumpu filed suit. GE Energy, who was not a signatory to the contracts with the arbitration agreements, nonetheless moved to compel arbitration, which was granted and upheld by the Supreme Court. 

In Badgerow v. Walters, 596 U.S. 1 (2022), the Supreme Court clarified that the “look-through” rule that is applied to deciding jurisdiction over motions to compel arbitration brought under the FAA does not apply in actions to confirm or vacate an award. Previously, the Supreme Court had held that a federal court should determine its jurisdiction over a motion to compel arbitration by looking to the underlying controversy, that is, “looking-through” the case. 

In Badgerow, the Court held that this rule does not apply to motions to confirm or vacate. In Badgerow, two citizens of the same state filed cross-applications for confirmation/vacatur that raised no federal issues, meaning there was no basis for federal jurisdiction. Even so, the court of appeals had affirmed a finding of federal jurisdiction based on the application of federal law in the underlying dispute decided in the arbitration. The Supreme Court reversed and remanded on the basis that there was no basis for any “look-through” to establish jurisdiction in such cases.

Finally, in 2023, the Supreme Court held in Coinbase, Inc. v. Bielski (“Coinbase I”), 599 U.S. 736 (2023) that an interlocutory appeal of a denial of a motion to compel arbitration under the FAA automatically stays the entire underlying litigation. Then, a year later in 2024, the Supreme Court held unanimously in Smith v. Spizzirri, 144 S. Ct. 680 (2024) that, when a dispute is compelled to arbitration, the FAA mandates a stay of litigation during arbitration (if requested) and does not permit courts to dismiss the case. In part, the Court reasoned that allowing dismissals upon granting a motion to compel would effectively create an end-run around the FAA, which authorizes an immediate interlocutory appeal from an order denying arbitration, but not from an order compelling arbitration, by turning an order compelling arbitration into a final appealable order.

Award enforcement

While most of the Supreme Court’s enforcement-related cases dealt with sovereign immunity questions as discussed below, in Yegiazaryan v. Smagin, 599 U.S. 533 (2023), the Supreme Court confirmed that in certain circumstances, creditors could use the US Racketeer Influenced and Corrupt Organizations Act (“RICO”) as part of their effort to enforce foreign arbitral awards. The decision used a balancing test to hold that Smagin, a foreign national, was eligible to recover RICO damages (which can allow treble compensatory damages) because Yegiazaryan, also a foreign national, had engaged in racketeering activity in or directed from California, aimed at frustrating Smagin’s recovery efforts. The Court agreed with the United States Court of Appeals for the Ninth Circuit that this caused Smagin a domestic injury by impairing his ability to enforce his California judgment, which arose out of an arbitral award issued in London.

Sovereign immunity

The interpretation and application of the Foreign Sovereign Immunity Act (“FSIA”) was a popular topic at the Supreme Court in the last decade. In Republic of Hungary v. Simon, 145 S. Ct. 480 (2025), the Supreme Court held that Hungary’s assets were immune from enforcement efforts pursued by Holocaust survivors and their heirs to recover from Hungary property confiscated during World War II. 

The plaintiffs invoked the expropriation exception, arguing that the property at issue was expropriated in violation of international law and that Hungary had commingled the profits from the sale of the confiscated property with its general funds, which it later used for commercial activities in the US, such as issuing bonds and purchasing military equipment. The Court rejected the plaintiffs’ arguments, instead holding that there must be more “commingling,” and that the FSIA’s expropriation exception does not apply unless plaintiffs plausibly trace the confiscated property or its proceeds to specific commercial activities in the US.

Most recently, in an opinion that was handed down in June 2025, CC/Devas (Mauritius) Ltd. v. Antrix Corp., 221 L.Ed.2d 867 (2025), the Supreme Court held that the FSIA’s arbitration exception does not impose a “minimum contacts” requirements, that is, that a defendant must have some level of contacts with the jurisdiction into which it is being forced. Devas Multimedia, a Mauritius-based company, obtained a $500 million arbitral award against Antrix Corp., an Indian state-owned entity, after Antrix terminated a satellite contract. Devas sought to enforce the award in the US under the FSIA’s arbitration exception but was initially denied by the Ninth Circuit for lack of contacts with Washington state.

Another case expected to be decided in 2025 is Wye Oak Technology, Inc. v. Republic of Iraq. A defense contractor, is asking the Court to determine whether in a breach of contract case under the FSIA’s third clause it is sufficient to prove “direct effect” using traditional causation principles, or if courts must also find that the contract at issue established or necessarily contemplated the US as a place of performance. The third clause provides an exception to sovereign immunity if the action is based on an act outside the US in connection with the sovereign’s commercial activity that causes a “direct effect in the United States.”

The Court is also asked to determine whether, in actions under the second clause, which requires an act performed within the US, that “act” must be by the sovereign. 

Class arbitrations

Class arbitrations have become more common in the last decade and thus have become a more popular topic at the Supreme Court. Consistent with its decisions interpreting the scope of the FAA, as discussed above, the Supreme Court has repeatedly emphasized that arbitration agreements under the FAA are to be interpreted on equal footing with other contracts. 

In 2011, the Supreme Court held in AT&T Mobility LLC v. Concepcion that the FAA preempted California case law that found agreements barring class arbitration were unconscionable and therefore invalidated. In DIRECTV, Inc. v. Imburgia, 577 U.S. 47 (2015), DIRECTV and its customers entered into service agreements that included an arbitration agreement, a class action waiver, and an agreement that the entire arbitration agreement was unenforceable if the law of the customer’s state made class action waivers unenforceable. 

A California court, relying on the state’s pre-Concepcion case law, found that the entire arbitration agreement was invalid. The Supreme Court reversed, extending its previous holding that Section 2 of the FAA embodies a national policy placing arbitration agreements on equal footing with other contracts. The Court found that the California court’s reasoning would not have been applied the same way in a non-arbitration context and therefore violated the FAA.

Then, in Lamps Plus, Inc. v. Varela, 587 U.S. 176 (2019), relying on its previous holdings that class arbitrations are inherently different from bilateral arbitrations (see, for example, Stolt-Nielsen S.A. v. Animal Feeds Int'l Corp., 559 U.S. 622 (2010)), the Supreme Court held that an arbitration agreement that was ambiguous as to the availability of class arbitrations lacked the consent required by the FAA to subject the parties to arbitration. The Court overturned a California court’s holding that applied California case law to interpret an ambiguous provision against the drafter, who here sought to avoid arbitration, again finding that the doctrine was preempted by the FAA as it treated arbitration agreements differently than other contracts.  

Live Nation Entertainment, Inc. v. Heckman is a case that is expected to be decided by the Supreme Court this year. It concerns whether the FAA applies to all arbitration agreements – including those with mass arbitration procedures – or only traditional bilateral arbitration agreements that were specifically envisioned when the FAA was originally enacted in 1925. Live Nation seeks to overturn the Ninth Circuit’s holding that the New Era ADR Arbitration Rules and Procedures, including its mass arbitration rules, are unconscionable.

Arbitrator disqualification

The Supreme Court denied review of two closely watched cases involving arbitrator disqualification, thereby implicitly affirming the underlying decisions. In Monster Energy Co. v. City Beverages, LLC, 141 S. Ct. 164 (2020), the Supreme Court affirmed the Ninth Circuit’s vacatur of an arbitral award on the basis that an arbitrator had failed to disclose that, as an owner of JAMS, he had a right to a portion of profits from all arbitrations rather than just those in which he participated. Since JAMS had administered 97 arbitrations for Monster in the foregoing five years, the facts and failure to disclose created a reasonable impression of partiality. 

In Grupo Unidos Por el Canal SA et al. v. Autoridad del Canal de Panamá, 144 S. Ct. 1096 (2024), the Supreme Court implicitly affirmed an Eleventh Circuit Court of Appeal’s decision holding that late disclosures regarding the arbitrator’s and counsel’s involvement in other cases did not arise to the standard of evident partiality because the alleged partiality was “remote, uncertain and speculative” and not “direct [and] definite.”

Delegation of arbitrability

In its arbitrability-related decisions of the past decade, the Supreme Court reinforced that courts must respect parties’ delegation of arbitrability to arbitrators, but must first determine if the FAA applies and which arbitration agreement controls before compelling the parties to arbitration. 

In Henry Schein Inc. v. Archer & White Sales Inc., 586 U.S. 63 (2019), the Court unanimously rejected certain courts of appeals’ attempts to circumvent parties’ delegations of questions of arbitrability to arbitrators under Sections 3 and 4 of the FAA by weighing the merits of the arbitrability question themselves. In particular, the Court struck down the Fifth Circuit’s “wholly groundless” exception, in which it could deny sending a dispute to arbitration – even if there was a delegation clause – if the court found the request for arbitration to be “wholly groundless”  to the delegation of arbitrability as a violation of the FAA.  

Then, in New Prime Inc. v. Oliveira, 586 U.S. 105 (2019), just days after the Henry Schein opinion, the Supreme Court unanimously held that federal courts must first determine whether the FAA applies to an agreement before compelling it to arbitration, even if it contains a delegation clause enforceable under Section 3 and 4. In New Prime, the Court determined that an independent contractor’s employment agreement was a “contract of employment” that fell within the exceptions to the FAA and thus could not be compelled to arbitration under the FAA.

Finally, in Coinbase, Inc. v. Suski (“Coinbase II”), 602 U.S. 143 (2024), the Supreme Court unanimously held that a court must decide which dispute resolution provision controls when there are multiple contracts with differing dispute resolution provisions at issue. In Coinbase II, the plaintiffs agreed to a contract with a delegation clause when they signed up for Coinbase’s cryptocurrency exchange platform but later participated in a sweepstakes, which had a different contract without an arbitration provision. The lower courts denied a motion to compel arbitration on that basis that the sweepstakes contract controlled. The Supreme Court ruled that, while the issue of arbitrability can be delegated to an arbitrator, where there are multiple (subsequent) contracts with different dispute resolution provisions, then it falls the courts to decide arbitrability.

Discovery

In 2022, the Supreme Court effectively eliminated the use of 28 U.S.C. § 1782 to obtain discovery in the US for use in most commercial, private international arbitrations. 

In ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), the Supreme Court unanimously held that “only a governmental or intergovernmental adjudicative constitutes a ‘foreign or international tribunal’ under 28 U.S.C. §1782,” a statute that permits parties to obtain discovery in the United States in aid of non-U.S. legal proceedings. 

This decision curtailed the broader application of Section 1782 that had followed the Court’s earlier decision in Intel Corp v. Advanced Micro Devices, Inc. recognizing the European Commission’s Directorate-General for Competition as a “tribunal” under the statute because it acted as a first-instance decision-maker. In ZF Automotive, the Supreme Court expressed its concern that extending Section 1782 would cause “significant tension with the FAA,” as Section 1782 “permits much broader discovery” than the FAA, creating “a notable mismatch between foreign and domestic arbitration.”

International arbitration has consistently featured in the Supreme Court’s decisions in the last decade. These cases are just a sample of those that have been decided, which have shaped the practice of international arbitration in the United States and abroad. From the application of sovereign immunity to the ability to obtain discovery in the US, for use in proceedings abroad to compelling non-signatories to participate in arbitration, the decisions have touched on a wide-range of topics. As practitioners and the Court continue to grapple with a rapidly changing global order, the Supreme Court will continue to play a role in how arbitration practitioners advise and represent their clients.