Originally from Defeating and Defending Awards: Arbitrability, Public Policy, and Global Court Practice

PREVIEW

As shown in Chapter 4: The Swamp of Arbitrability, the United States has a different notion of what arbitrability is compared to the generally perceived international notion. Consequently, any attempt to appreciate the global perspective on arbitrability and how the various jurisdictions interpret and apply the relevant articles of the New York Convention 1958, cannot be done without a discussion of the American notion of arbitrability, and how the American judiciaries approach it. In addition, an understanding of the American notion of arbitrability will help to provide some of the reasons why there are far more court decisions under Article V(2)(a) of the New York Convention 1958 in the US than any other jurisdictions – as will be seen in Chapter 8: Gathering the Data, Analysis, and Understanding the Results. Hence, this chapter of the thesis contributes directly to answering all three research questions on the notion of arbitrability and those relating to the New York Convention 1958. In particular, this chapter answers part of Research Question A on the understanding of the notion of arbitrability, in particular Sub-Research Enquiry A7: The US jurisprudence on Arbitrability, in particular the Gateway Issue on Jurisdiction.

This chapter endeavours to explicate and discuss the US approach. Having said that, it is beyond the scope of this chapter to detail the many aspects of American arbitrability, which encompasses the following questions: Is there an agreement to arbitrate between the parties? Is the agreement in the correct format? Is the dispute within the scope of the agreement to arbitrate? Is the agreement valid? And is the dispute within the scope of arbitration or is it reserved exclusively for the court to decide? 

At a glance, one may already perceive the wide–ranging scope of American arbitrability. These are not complex issues, even though they may bring their own challenges and difficulties. As has been fittingly noted: “the conditions are easy to state, their content and application frequently cause problems”.  It would be far too ambitious for this chapter to address the numerous questions that are enveloped under the American notion of the term arbitrability. One must be selective to achieve a certain degree of focus and depth. Therefore, this chapter will specifically address a primary question of arbitrability, which is an important preceding enquiry that must be addressed first and foremost: who decides the arbitrability question – the court or the arbitral tribunal?  As one might expect, the answer to this question is obvious – it is the courts that decide the question of arbitrability and that is the end of the story. The position, in reality, is far from this simplistic, presumptuous, and single–minded viewpoint. The assembly of American case law suggests otherwise, and the US Supreme Court has been rather engaged in addressing this issue over the past two decades or so. 

It is this gateway question of who decides the arbitrability question that this chapter will examine and discuss.  For the avoidance of doubt, this chapter will not explicitly address what law the American legal system employs to determine what arbitrability is.  What law governs an issue of arbitrability is not straightforward. It depends upon what element of arbitrability is at issue. This answer is hardly surprising, given the wide–ranging and broad spectrum of what arbitrability entails. This chapter will discuss the gateway issue and particularly focus on the issue of jurisdiction.