Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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The Supreme Court’s decision in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), is one of the pillars of arbitration law in the United States.  It defines the respective role of courts and arbitral tribunals in deciding issues of “arbitrability.”  In First Options, the Court explained that the answer to the question of “who should have the primary power to decide arbitrability” is “fairly simple” and depends “upon what the parties agreed about that matter.”  Id. at 944 (emphasis in original).  In other words, “[d]id the parties agree to submit the arbitrability question itself to arbitration?” Id. In answering this question, the Court emphasized that “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” Id. at 945 (citations omitted).  Thus, the presumption is that arbitrability is to be decided by a court, not an arbitrator, unless the parties clearly and unmistakably agree to delegate that responsibility to an arbitrator. 

With these few words the Court created an analytical framework based on the premise that parties can agree to arbitrate “arbitrability” just as they can agree to arbitrate any other issue.