A gateway question that the parties can assign to the arbitrator, and often unknowingly do.
Esshaki Legal Media TeamCurrent as of December 2021
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.