Determining Jurisdiction and Arbitrability - Chapter 5 - College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 3rd Edition

Author(s):

Raymond Doak Bishop

Robert B. Davidson

James M. Gaitis

Barry H. Garfinkel

Carl F. Ingwalson Jr.

June R. Lehrman

James R. Madison

Page Count:

16 pages

Media Description:

1 PDF Download

Published:

January, 2014

Practice Areas:

Commercial Disputes,

Arbitrability,

Waivers,

Separability,

Practice & Procedure,

Evidence

PDF593.45 KB

$40.00

Description:

Originally from: College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration

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Arbitrators should understand the legal principles governing the extent of their authority to resolve challenges to jurisdiction and arbitrability and when possessed of such authority, should resolve such issues at a time and in a manner that best ensures efficiency and protects the interests of the parties.

I. INTRODUCTION

Arbitrators should be aware that the question whether challenges to jurisdiction and arbitrability are to be decided by courts or arbitrators is a subject of complex and evolving case law.

Arbitrators generally have authority over only those parties who have agreed to arbitrate and those disputes that fall within the terms of the parties’ written arbitration agreement. The scope of the arbitrators’ authority, however, is not always obvious from a simple reading of the arbitration agreement. For example, instances arise (1) in which parties who are not signatories to a contract are compelled, or have the right, to arbitrate claims under that contract; and (2) in which claims arising under one contract are subject to arbitration pursuant to an arbitration clause contained in a different contract.

Technically, arbitral authority over persons should properly be referred to as jurisdiction, whereas arbitrability should refer to whether the subject matter of the parties’ dispute is within the scope of the arbitration agreement or whether public policy bars arbitration of certain kinds of disputes, for example, claims for violation of statutory rights. (Although the United States Supreme Court frequently has held that disputes that arise from federal statutes, such as antitrust, securities, racketeering, and employment disputes, are arbitrable, there always remains the possibility that Congress will exempt some statute-based claims or, indeed, other claims from being arbitrated.) Unfortunately, the terms jurisdiction and arbitrability are often used interchangeably in case law adn literature, and such usage unavoidably carries over to this chapter. The term arbitrability has been used to cover three distinct issues: (1) whether parties have agreed to an arbitration clause, (2) whether the arbitration clause is enforceable legally, and (3) whether a particular dispute is within the scope of the arbitration clause.