Before any arbitration, someone must decide whether the parties agreed to arbitrate this dispute. Whether that decision belongs to a court or to the arbitrator is itself a contested question.
The default. Questions of arbitrability — whether a valid agreement exists and whether it covers the dispute — are for the court, unless the parties clearly and unmistakably delegated them to the arbitrator.
Delegation clauses. An express clause assigning arbitrability to the arbitrator is enforced. Incorporation of institutional rules that empower the arbitrator to rule on jurisdiction has been held by many courts to constitute clear and unmistakable delegation, which means a single sentence adopting a provider’s rules can move the entire gateway question.
Challenging the delegation. A party must attack the delegation provision specifically; a general challenge to the contract or to the arbitration clause as a whole goes to the arbitrator.
Separability. An arbitration clause is treated as separable from the container contract, so a claim that the contract is void goes to the arbitrator while a claim that the arbitration clause itself was never agreed goes to the court.
Non-signatories. Whether an agreement binds or benefits a non-signatory — through agency, estoppel, assumption, veil piercing or third-party beneficiary theories — is generally decided by the court under state contract law.