Originally from American Review of International Arbitration - ARIA

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THE RULES GOVERNING WHO DECIDES JURISDICTIONAL
ISSUES: FIRST OPTIONS v. KAPLAN REVISITED
Steven H. Reisberg*
 

 I. INTRODUCTION

This article addresses one of the fundamental issues at the core of arbitration
jurisprudence: Who -- the court or the arbitrator -- is to decide whether a person
is required to arbitrate a particular dispute? As will be shown, the rules that
govern the "who is to decide" question once were well defined. Today, however,
there exists significant confusion as to how a court is to decide which forum, the
court or the arbitrator, has the jurisdiction to decide this threshold issue. The
current confusion can be traced directly to the Supreme Court’s decision in First
Options of Chicago, Inc. v. Kaplan. One goal of this article is to identify the
well-defined legal rules that once governed the analysis of this threshold question.
This article will also show how the use by the Supreme Court of the term
"arbitrability" in First Options has introduced significant confusion into the law of
arbitration and obscured these once-clear governing rules.

Whether a party is required to submit a particular dispute to arbitration may
contain within it two completely distinct legal issues. First, a party may be
objecting to arbitration on the ground that no valid, enforceable arbitration
agreement exists between the parties. Second, and alternatively, a party may be
arguing that the particular dispute does not fall within the scope of the arbitration
agreement. The distinction between these two objections to arbitration is critical,
because each is governed by its own separate set of legal rules that govern "who,"
meaning which forum -- the court or the arbitrator -- is to adjudicate such
objection to arbitration.

Courts repeatedly recognize that the issue of who has the jurisdiction to
decide the "question of arbitrability" is a threshold issue. However, the use of the
term "arbitrability" in the framing of this question has introduced and is the source
of substantial confusion. This is because the term "arbitrability," as used by
courts and commentators alike, can refer to both of the two above-noted very
different objections to arbitration. If there is no valid and enforceable arbitration
agreement between the parties, then neither can be required to arbitrate the
dispute.