Duration of Arbitration Agreements as a Question of Scope: Commentary on Cerna v. Pearland Urban Air, LLC

Duration of Arbitration Agreements as a Question of Scope:
Commentary on Cerna v. Pearland Urban Air, LLC

I. Introduction

The Supreme Court of Texas’s decision in Abigail Dalila Cerna, as Next Friend of R.W. v. Pearland Urban Air, LLC, No. 24-0273 (Tex. May 23, 2025), significantly refines Texas arbitration jurisprudence on the line between:

  • the existence of an arbitration agreement (a question reserved to courts), and
  • the scope of that agreement (which parties may delegate to an arbitrator).

The Court holds that when there is a concededly valid arbitration agreement containing a “clear and unmistakable” delegation clause, a dispute over the temporal reach or duration of that agreement—here, whether it applies to later visits to a trampoline park—is a scope question, not an existence question. Because scope was expressly delegated, the issue belonged to the arbitrator, not the court.

Practically, this decision affects a wide range of consumer-facing contracts (waivers at recreational facilities, gyms, entertainment venues, etc.), many of which are signed once and then invoked repeatedly. Legally, it cements a two-step framework:

  1. Courts decide whether an arbitration agreement exists and whether it clearly and unmistakably delegates arbitrability issues.
  2. If it does, arbitrators decide whether particular claims fall within that agreement—including disputes over its duration.

II. Background and Procedural History

A. Factual Setting

Abigail Cerna took her child, R.W., to the Urban Air Trampoline and Adventure Park in Pearland, Texas, on August 30, 2020. At that time, she signed a “Customer Release, Assumption of Risk, Waiver of Liability, and Indemnification Agreement” (the August Agreement).

Key features of the August Agreement:

  • It released claims against Urban Air and related entities in exchange for admission to the Pearland park or “any other premises owned or operated by Urban Air wherever located.”
  • It contained a broad arbitration clause requiring that “any dispute or claim arising out of or relating to this Agreement, breach thereof, the Premises, Activities, property damage (real or personal), personal injury (including death), or the scope, arbitrability, or validity of this arbitration agreement” be resolved by binding arbitration under AAA Commercial Rules.
  • The agreement did not contain express language on its duration or whether it covered future visits.

On November 21, 2020, about three months later, Cerna and her child returned to the Pearland Urban Air facility. They did not sign a new release on this second visit. During this visit, Cerna alleges that her child was seriously injured by cutting his foot while jumping on a trampoline.

B. Litigation and Motion to Compel Arbitration

Cerna, as next friend of R.W., sued Pearland Urban Air, alleging negligence and related claims arising from the child’s November injury. Urban Air moved to compel arbitration based on the August Agreement’s arbitration clause, arguing that the claims:

  • arose from activities on Urban Air’s premises, and
  • were therefore covered by the existing arbitration agreement (and its delegation of arbitrability issues).

Cerna opposed the motion, arguing essentially:

  • There was no arbitration agreement applicable to the November visit, because the August Agreement contained no durational term and was at most a “single-visit” document.
  • Thus, she framed the dispute as one about the existence of any arbitration agreement covering the November visit, which a court must decide.

The trial court denied Urban Air’s motion to compel arbitration.

C. Court of Appeals Decision

On interlocutory appeal, the Fourteenth Court of Appeals (Houston) reversed:

  1. It held that the August Agreement was a valid contract binding Cerna and her child.1
  2. It characterized Cerna’s argument—that the August Agreement did not apply to the November visit—as a scope, not an existence, challenge.2
  3. Because the arbitration clause expressly delegated issues of “scope, arbitrability, or validity” to the arbitrator, the trial court was required to compel arbitration and let the arbitrator decide whether the November incident fell within the agreement’s scope.3

A concurring justice in the court of appeals opined that a separate issue raised by Cerna—whether the Texas Arbitration Act’s (TAA) attorney-signature requirement applied—was a formation (existence) issue for the court. But that justice concluded that the agreement was governed by the Federal Arbitration Act (FAA), under which that TAA requirement would not apply.4 Cerna did not pursue this issue before the Supreme Court, and it plays no role in the Court’s reasoning.

D. Supreme Court of Texas Review

The Supreme Court granted review and, in an opinion by Justice Bland, affirmed the court of appeals. The Court agreed that:

  • there was a valid arbitration agreement (the August Agreement); and
  • the dispute about whether that agreement applied to the November visit was a question of scope delegated to the arbitrator.

1. Cerna v. Pearland Urban Air, LLC, 693 S.W.3d 711, 716 (Tex. App.—Houston [14th Dist.] 2024).
2. Id. at 716–17.
3. Id. at 717.
4. Id. at 717–18 (Christopher, C.J., concurring).

III. Summary of the Supreme Court’s Opinion

The Court’s core holdings can be summarized as follows:

  1. Two-step inquiry for compelling arbitration.
    A party seeking to compel arbitration must show:
    1. a valid arbitration agreement exists, and
    2. the claims fall within the scope of that agreement.5
    Courts always decide the first step (existence). The second step (scope) can be delegated to the arbitrator if the parties clearly and unmistakably so agree.
  2. Existence vs. scope must remain conceptually distinct.
    The Court reiterates that existence concerns whether any arbitration agreement formed or remains in force at all; scope asks whether specific claims or disputes fall within that existing agreement. Litigants cannot collapse these inquiries by rephrasing a scope dispute as a claim that “no arbitration agreement exists as to these particular claims.”6
  3. Duration/temporal reach is a question of scope here.
    Because Cerna:
    • concedes the August Agreement’s validity and applicability to the August visit, and
    • does not assert any subsequent, superseding contract for the November visit,
    her argument—that the August Agreement does not cover the November incident—is a scope challenge, not an existence challenge.
  4. Delegation clause is clear and unmistakable.
    The August Agreement’s language that disputes involving the “scope, arbitrability, or validity” of the arbitration agreement must themselves be arbitrated is a classic, “clear and unmistakable” delegation of arbitrability questions. Thus, the court must compel arbitration and allow the arbitrator to decide whether the November claims are arbitrable.7
  5. Court expresses no view on whether the November claims are actually arbitrable.
    Because arbitrability questions have been delegated, the Supreme Court expressly declines to decide whether the August Agreement in fact extends to the November visit.8

The Court therefore affirms the judgment of the court of appeals and remands the case to the trial court with instructions to compel arbitration.

5. In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011).
6. TotalEnergies E&P USA, Inc. v. MP Gulf of Mex., LLC, 667 S.W.3d 694, 720 (Tex. 2023).
7. Citing Baby Dolls Topless Saloons, Inc. v. Sotero, 642 S.W.3d 583, 587 (Tex. 2022).
8. See also TotalEnergies, 667 S.W.3d at 721.

IV. Detailed Analysis

A. The Legal Framework: Existence, Scope, and Delegation

1. Statutory foundations (TAA and FAA)

Both the Texas Arbitration Act (TAA) and the Federal Arbitration Act (FAA) require courts, as a threshold matter, to determine whether an arbitration agreement actually exists before compelling arbitration:

  • TAA: Texas Civil Practice & Remedies Code § 171.021(b) directs courts to “summarily determine” any denial of the existence of the agreement before ordering arbitration.
  • FAA: 9 U.S.C. § 4 empowers courts to compel arbitration only if they are “satisfied that the making of the agreement for arbitration is not in issue.”

The Court underscores this foundational principle: arbitration is purely a matter of contract; there is no power to compel arbitration without an underlying agreement.9

2. Step one: “Existence” questions reserved to courts

“Existence” questions include:

  • Formation challenges – e.g., whether there was offer and acceptance, capacity, consideration, fraud in the execution, etc. (J.M. Davidson, Inc. v. Webster10).
  • Signatory vs. non-signatory – whether a party seeking to compel arbitration is contractually linked to the other party at all (G.T. Leach Builders, LLC v. Sapphire V.P., LP11).
  • Superseding or later contracts – whether a subsequent agreement terminates or replaces the earlier arbitration agreement, such that the earlier agreement “no longer exists.” (Transcor Astra Group S.A. v. Petrobras America Inc.12; adopted by the U.S. Supreme Court in Coinbase, Inc. v. Suski13).

Courts must decide these questions before compelling arbitration and cannot defer them to an arbitrator.

3. Step two: “Scope” questions and delegation

Once a court finds that an arbitration agreement exists, it confronts the second inquiry: do the claims fall within the scope of that agreement?14 Scope questions include:

  • Whether particular claims “arise out of” or “relate to” the agreement or designated subject matter.
  • Whether an explicit carve-out excludes certain types of disputes from arbitration (e.g., Wagner v. Apache Corp.15).
  • Whether the arbitration provision applies to certain categories of claims or time periods, including questions about the duration or temporal reach of the agreement.

Crucially, because arbitration provisions are themselves contracts, parties can further contractually agree to delegate scope questions to the arbitrator. The Supreme Court describes such arrangements as “delegation provisions.”

4. The “clear and unmistakable” standard

Delegation provisions are enforceable only when they “clearly and unmistakably” show that the parties intended to have an arbitrator—not a court—decide arbitrability questions.16 Under Texas and United States Supreme Court precedent:

  • “Questions of arbitrability” are a narrow category: whether a valid arbitration agreement exists at all, and whether a concededly binding arbitration clause applies to a particular controversy (Robinson v. Home Owners Mgmt. Enters., Inc., quoting Howsam v. Dean Witter Reynolds, Inc.17).
  • Ordinarily, courts decide these questions. But if the contract unmistakably assigns them to the arbitrator, courts must honor that assignment (Henry Schein, Inc. v. Archer & White Sales, Inc.18).

Language explicitly referencing the “scope, arbitrability, or validity” of the arbitration agreement as issues for arbitration has repeatedly been held sufficiently clear:

  • Baby Dolls Topless Saloons, Inc. v. Sotero – language that “arbitration shall be the sole forum to determine the validity, scope and breadth of this Agreement” was found clear and unmistakable.19
  • TotalEnergies E&P USA, Inc. v. MP Gulf of Mex., LLC – similar delegation of “validity and scope” questions upheld.20

The Urban Air agreement uses nearly identical language, making it an archetypal delegation clause.

9. TotalEnergies, 667 S.W.3d at 701; Henry Schein, 586 U.S. 63, 69 (2019).
10. 128 S.W.3d 223, 227–28 (Tex. 2003).
11. 458 S.W.3d 502, 524 (Tex. 2015).
12. 650 S.W.3d 462, 480 (Tex. 2022).
13. 602 U.S. 143, 152 (2024).
14. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001).
15. 627 S.W.3d 277 (Tex. 2021).
16. TotalEnergies, 667 S.W.3d at 719.
17. 590 S.W.3d 518, 525 (Tex. 2019) (quoting Howsam, 537 U.S. 79, 83 (2002)).
18. 586 U.S. 63 (2019).
19. 642 S.W.3d at 587.
20. 667 S.W.3d at 702.

B. Precedents Cited and Their Influence

1. In re Rubiola and the two-prong test

In re Rubiola, 334 S.W.3d 220 (Tex. 2011), provides the basic two-part framework for motions to compel arbitration:

  1. Is there a valid arbitration clause?
  2. Do the claims fall within the clause’s scope?

The Urban Air opinion reiterates this rubric to structure its analysis and emphasizes that delegation clauses only affect the second prong. Courts always retain responsibility for prong one.

2. In re Morgan Stanley, J.M. Davidson, and formation challenges

In In re Morgan Stanley & Co., 293 S.W.3d 182 (Tex. 2009), the Court held that courts must decide challenges “to the very existence of an agreement to arbitrate.” Likewise, J.M. Davidson underscores that Texas courts apply ordinary contract principles to determine whether an enforceable arbitration agreement has formed.

These cases serve to define the boundary of the court’s non-delegable authority. In Cerna, the Court explains that:

  • Cerna does not dispute the formation or validity of the August Agreement itself.
  • Her challenge is not that she never agreed to arbitrate (formation); rather, she argues that the August Agreement should not govern the November incident (scope/duration).

3. G.T. Leach, non-signatories, and existence

In G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502 (Tex. 2015), the Court held that compelling a non-signatory to arbitrate raises existence issues—whether there is any arbitration agreement between those particular parties. That is always a judicial question.

By invoking G.T. Leach, the Court clarifies that the Urban Air case does not involve non-signatory issues: Cerna herself signed the August Agreement and concedes its binding nature as to at least some disputes.

4. Transcor Astra and Coinbase v. Suski: Later contracts and “continued existence”

In Transcor Astra Group S.A. v. Petrobras America Inc., 650 S.W.3d 462 (Tex. 2022), the Court confronted a situation where parties had:

  • an earlier contract containing an arbitration clause, and
  • a later settlement agreement that potentially extinguished that arbitration obligation.

The Court held that when parties dispute whether the earlier arbitration agreement continued to exist after the subsequent agreement, that is an existence issue for courts—whether the arbitration agreement “still exists at all.”21 The U.S. Supreme Court embraced this approach in Coinbase, Inc. v. Suski, holding that where one contract sends arbitrability to arbitration and a later contract sends disputes to courts, the court must decide which contract governs.22

In Cerna, there is no alleged subsequent agreement for the November visit—no second waiver, no membership contract, nothing purportedly supplanting the August Agreement. The Court uses Transcor Astra and Coinbase to highlight that:

  • where a later contract exists, the continued existence of the earlier arbitration agreement is a judicial issue;
  • but where no later contract is alleged, and formation is conceded, disputes about which claims are covered remain scope issues.

5. TotalEnergies and avoiding “scope-existence” collapse

TotalEnergies E&P USA, Inc. v. MP Gulf of Mex., LLC, 667 S.W.3d 694 (Tex. 2023), is the most important precedent guiding this opinion. There, a party claimed that the arbitration agreement did not apply to certain claims because those claims did not arise under the specific contract containing the arbitration clause. It attempted to reframe this as an “existence” challenge—asserting that “no arbitration agreement exists as to these claims.”

The Supreme Court rejected that maneuver, holding that:

  • Existence and scope are distinct inquiries and must remain so.
  • When an arbitration agreement is conceded to exist, arguments that the agreement does not apply to particular claims are scope issues.23

Cerna explicitly applies this logic: reframing “the August Agreement does not apply to the November visit” as “no arbitration agreement exists for the November visit” impermissibly collapses scope into existence.

6. RSL Funding and conceded existence

In RSL Funding, LLC v. Newsome, 569 S.W.3d 116 (Tex. 2018), the Court held that a party who “concedes the existence of the agreement” is bound by a valid delegation clause concerning scope and arbitrability.24 Once existence is conceded and a delegation clause is clear, courts must compel arbitration of gateway issues.

Cerna follows the same pattern:

  • Cerna concedes the August Agreement’s validity and binding effect (at least for the August visit).
  • The agreement clearly delegates questions concerning its “scope, arbitrability, or validity.”
  • Therefore, the court must compel arbitration and allow the arbitrator to decide whether the November claims fall within that scope.

7. Baby Dolls, Robinson, Henry Schein, and Morgan v. Sundance

The Court also relies on:

  • Baby Dolls Topless Saloons, Inc. v. Sotero, 642 S.W.3d 583 (Tex. 2022), which upheld a similarly worded delegation provision.
  • Robinson v. Home Owners Mgmt. Enters., Inc., 590 S.W.3d 518 (Tex. 2019), which clarifies which issues count as “questions of arbitrability” subject to the clear-and-unmistakable standard.
  • Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63 (2019), where the U.S. Supreme Court rejected the “wholly groundless” judicial exception to delegation provisions; if the parties clearly delegate arbitrability, courts must send those questions to the arbitrator, even if the claim of arbitrability appears groundless.
  • Morgan v. Sundance, Inc., 596 U.S. 411 (2022), which emphasizes that arbitration agreements should be treated like any other contract—no more and no less—in terms of enforcing the parties’ bargain.25

Collectively, these cases support the Cerna Court’s insistence that:

  • Once a valid delegation is found, the court’s authority to decide arbitrability issues is at an end.
  • Cerna’s concern about “perpetual delegation” of all future disputes is controlled by contractual interpretation (left to the arbitrator), not by judicially invented exceptions to enforcement of delegation clauses.

21. 650 S.W.3d at 480.
22. 602 U.S. at 152.
23. TotalEnergies, 667 S.W.3d at 720.
24. 569 S.W.3d at 126.
25. 596 U.S. at 418.

C. The Court’s Legal Reasoning Applied

1. Step one: Existence of a valid arbitration agreement

The Court first confirms that there is no genuine dispute about the existence of the August Agreement:

  • Cerna signed the August Agreement on entry to the Pearland Urban Air.
  • She does not challenge its formation (no claim of fraud, duress, lack of capacity, etc.).
  • She does not contest that it validly binds her and her child as to the August visit.
  • There is no allegation of a later, superseding contract for the November visit.

Accordingly, the Court treats the August Agreement as a valid, existing arbitration agreement. This satisfies the first prong under Rubiola.

2. Characterizing the November-visit objection: existence or scope?

The center of the opinion is the Court’s characterization of Cerna’s core argument:

  • Cerna emphasizes that the August Agreement lacks explicit durational language and was signed only in connection with the August visit.
  • She contends that because Urban Air produced no separate agreement for the November visit, “no arbitration agreement exists” for that visit.

The Court rejects this framing as improperly collapsing scope and existence. It stresses:

  • Cerna does not deny that an arbitration agreement exists at the time of suit; she simply disputes whether the claims arising from the November visit fall within that agreement.
  • She does not allege any later contract that would have extinguished or replaced the August Agreement (which would indeed raise an existence issue under Transcor Astra and Coinbase).

Thus, the Court classifies the dispute as a classic scope/applicability question: does the existing August Agreement extend to incidents occurring on later visits?

3. Delegation of scope disputes to the arbitrator

After characterizing the dispute as one of scope, the Court then examines the delegation provision. The August Agreement requires arbitration of any dispute relating to:

“the scope, arbitrability, or validity of this arbitration agreement.”

Based on Baby Dolls, RSL Funding, and TotalEnergies, this language:

  • clearly and unmistakably delegates arbitrability and scope issues to the arbitrator; and
  • therefore removes from the judiciary the authority to decide whether the November incident is covered by the August Agreement.

The Court reinforces that its role is limited to step one—confirming existence and a valid delegation. Once it finds both, it must compel arbitration and allow the arbitrator to interpret the contract’s temporal reach.

4. Addressing the “endless delegation” concern

Cerna warns that, under the court of appeals’ analysis, once parties have agreed to a delegation clause, any dispute about arbitrability “in perpetuity and without judicial inquiry” could be shunted to arbitration so long as some prior arbitration agreement once existed.

The Supreme Court responds by pointing to existing safeguards:

  • The “clear and unmistakable” standard ensures that delegation is not lightly implied; parties must expressly and plainly consent.
  • A subsequent contract that either contradicts or supersedes an earlier arbitration agreement continues to provide a judicial backstop—courts decide whether the earlier agreement “still exists at all.” (Transcor Astra; Coinbase.)
  • Even after a court compels arbitration, the arbitrator will decide whether a particular claim is actually subject to the arbitration agreement—and may find that trying to compel arbitration of a plainly unrelated dispute was frivolous (Henry Schein’s point that the “who decides” question is distinct from “who prevails”).26

Thus, the Court suggests that the system already balances enforceability of delegation clauses with protections against overreaching.

26. 586 U.S. at 71.

D. Impact and Implications

1. Doctrinal impact on Texas arbitration law

The opinion fits into and sharpens a line of recent Texas and U.S. Supreme Court cases refining arbitration doctrine:

  • Clarification of “existence vs. scope”: The Court continues the work of TotalEnergies by insisting that parties cannot sidestep delegation clauses through semantic relabeling. If an arbitration agreement is conceded to exist, arguments about whether particular claims or timeframes are covered are scope questions and, when delegated, must go to the arbitrator.
  • Integration with federal doctrine: By expressly relying on Henry Schein, Coinbase, and Morgan v. Sundance, the Court aligns Texas law with federal arbitration principles, reinforcing that:
    • courts may not create ad hoc exceptions (“wholly groundless”); and
    • arbitration contracts are enforced according to their terms, neither favored nor disfavored relative to other contracts.

2. Practical consequences for drafting and business practices

For businesses (especially consumer-facing venues like trampoline parks, gyms, amusement parks, and similar enterprises), this decision has several concrete implications:

  • Increased value of “once-and-for-all” waivers.
    If a release or participation agreement:
    • is written broadly, and
    • contains a clear delegation clause,
    then disputes about whether it applies to future visits or later incidents are likely to be sent to arbitration rather than litigated in court.
  • Incentive to include explicit duration clauses.
    While Cerna does not decide the substantive question of duration, it underscores that in the absence of explicit duration terms, the question will be one of contractual interpretation—usually by an arbitrator. Businesses and counsel may now:
    • choose to specify that waivers apply to “this visit only,” or
    • conversely, draft language expressly covering “all present and future visits” to avoid argument.
  • Careful use of delegation clauses.
    Delegation language like “scope, arbitrability, or validity” is now firmly recognized as effective in Texas. Counsel who wish to ensure that arbitrators, not courts, resolve interpretive disputes over the breadth or timing of arbitration agreements will continue to use such formulations.

3. Consequences for litigants and strategy

For plaintiffs and defense counsel, the decision has important strategic consequences:

  • Framing challenges correctly.
    Parties who wish to keep arbitrability questions in court must:
    • raise genuine formation (existence) challenges, such as lack of assent, incapacity, fraud, or statutory invalidity; or
    • identify a later contract that arguably supersedes the earlier arbitration agreement.
    Attempts to repackage scope disputes as “existence” disputes will be dismissed as inconsistent with TotalEnergies and Cerna.
  • Direct attacks on the delegation clause.
    Under both Texas and federal law, a party may still argue that the delegation clause itself is invalid (e.g., unconscionable, prohibited by statute). But such challenges must be directed specifically at the delegation provision, not just at the contract as a whole.
  • Awareness of the “two-step” process.
    Litigants must now assume that once a court finds:
    • a valid arbitration agreement exists, and
    • a clear and unmistakable delegation provision is present,
    virtually all further arguments about arbitrability or scope will be funneled to the arbitrator.

4. Potential consumer-protection and fairness concerns

Although the Court does not address policy concerns directly, the decision may raise practical questions:

  • A consumer may sign a waiver for a single visit without realizing it might later be argued to cover all future visits and injuries, with arbitrability questions decided by a private arbitrator rather than a judge.
  • On the other hand, the Court’s approach is consistent with the broader policy of enforcing contracts as written and allowing parties to choose arbitration—including the choice to have arbitrators decide gateway questions.

Any adjustments to address perceived imbalances—such as statutory protections limiting the reach of pre-injury personal-injury arbitration clauses or imposing special notice requirements—would be a matter for the Legislature, not the courts.

V. Clarifying Complex Concepts and Terminology

A. Arbitration Agreement vs. Arbitration Clause

  • Arbitration clause: The provision in a contract requiring that certain disputes be resolved through arbitration rather than litigation.
  • Arbitration agreement: Either a standalone contract to arbitrate or a broader contract that includes an arbitration clause. Cerna involves the latter—an arbitration clause embedded in a liability waiver and release.

B. “Questions of Arbitrability”

Under Howsam and Texas cases:

  • Questions of arbitrability (generally for courts absent delegation):
    • Is there a valid, binding arbitration agreement at all?
    • Does that arbitration agreement apply to this type of dispute?
  • Procedural issues (generally for the arbitrator):
    • Time limits, waiver within the arbitration process, conditions precedent to arbitration, etc.

But if there is a clear and unmistakable delegation clause, the first category (questions of arbitrability) can also be placed in the arbitrator’s hands.

C. Delegation Clause

A delegation clause is a contractual provision by which parties agree that the arbitrator, rather than a court, will decide certain gateway issues, such as:

  • whether the arbitration clause is valid or enforceable,
  • whether particular claims fall within the clause’s scope, or
  • whether certain parties are bound by the clause.

In Cerna, the clause expressly covers disputes about the “scope, arbitrability, or validity” of the arbitration agreement—leaving the court only the initial determination whether an agreement exists and contains such a clear delegation.

D. “Existence” vs. “Scope” vs. “Validity”

  • Existence – Did the parties ever form an arbitration agreement?
    • Examples: no signature, no assent, forged signature, no capacity, superseding later contract that terminates earlier agreement.
    • Always a judicial question; cannot be delegated.
  • Scope – Which claims or disputes are covered by the existing agreement?
    • Examples: tort vs. contract claims; disputes arising under certain sections; disputes occurring in a particular time period or at particular locations; as here, whether later visits are covered.
    • May be delegated if the delegation is clear and unmistakable.
  • Validity – Is the arbitration clause itself enforceable?
    • Examples: unconscionability, illegality, statutory prohibitions on arbitration of certain claims.
    • Can be delegated if the challenge is to the contract as a whole rather than specifically to the delegation clause, but challenges directed at the delegation clause itself remain for the court.

E. Superseding Agreements

A superseding agreement is a later contract between the same parties that either:

  • expressly revokes an earlier contract, or
  • is so inconsistent with the earlier contract that the two cannot reasonably be reconciled.

Where a later agreement appears to contradict an earlier arbitration clause or its delegation provision, courts must decide whether the earlier clause “still exists” at all, as in Transcor Astra and Coinbase. In Cerna, the absence of any later agreement is what makes duration/temporal reach a matter of scope rather than continued existence.

VI. Conclusion

The Supreme Court of Texas’s decision in Cerna v. Pearland Urban Air, LLC establishes a clear and consequential rule: when a valid arbitration agreement contains a clear and unmistakable delegation clause covering disputes about “scope, arbitrability, or validity,” then a dispute over the duration or temporal reach of that agreement is a scope question for the arbitrator—not an existence question for the court.

Key takeaways include:

  • Courts must rigorously separate existence from scope. Existence concerns whether there is any arbitration agreement at all (or whether it continues to exist in light of a later contract). Scope concerns which claims, controversies, and time periods an existing agreement covers.
  • Attempts to recharacterize scope disputes as existence disputes—by asserting that “no agreement exists as to these claims”—will be rejected where the underlying agreement is conceded to exist, as reaffirmed from TotalEnergies to Cerna.
  • Clear delegation provisions—like those assigning disputes over “scope, arbitrability, or validity” to arbitration—are fully enforceable under both Texas and federal law. Once such a delegation is found and a valid agreement exists, courts must compel arbitration and allow arbitrators to determine arbitrability.
  • For businesses and drafters, the case underscores the power and significance of well-crafted arbitration and delegation clauses, particularly in recurring-visit contexts like recreational and entertainment facilities. For litigants, it highlights the need to carefully frame any challenge to arbitration, distinguishing between true formation issues, superseding-contract issues, and scope questions governed by delegation.

In the broader landscape, Cerna further aligns Texas arbitration jurisprudence with federal doctrine, fortifying a consistent, contract-centered approach: courts will enforce arbitration (and delegation) agreements according to their terms, leaving interpretive disputes about scope and duration to the forum that the parties themselves selected—arbitration.

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