Abstract
Arbitrability is whether parties to a transaction have submitted a particular dispute to be resolved via arbitration rather than by courts. In the arbitrability domain, a question that follows is “who decides” whether parties have determined arbitrators or judges should decide the arbitrability question. Such questions raised at the very early stages of arbitration are referred to as ‘gateway’ or ‘threshold’ issues.
The proposition whether parties may submit disputes to arbitration is supported under the Federal Arbitration Act (FAA), and, mostly consistently, applied by the Supreme Court. However, the Act does not address whether the ‘question of arbitrability’ should be decided by arbitrators or judges. The FAA was enacted after decades of hostility towards arbitration in English and American courts. The “passage of the Act was motivated, first and foremost, by a congressional desire to enforce agreements into which the parties had entered.” And, of course, the underlying logic – whether parties may submit disputes to arbitration – is traced back to the contractual nature of arbitration, and that contracts must be interpreted and enforced in line with parties’ stipulations.
This paper aims to discuss most fundamental and recent issues in re arbitrability through a survey of the Fourth Circuit cases in light of the Supreme Court’s precedent on arbitrability. It specifically discusses arbitrability (the ‘who decides’ question’), interpretive tools developed by the Court to cope with question of arbitrability, the separability rule, the “clear and unmistakable” test, and the “wholly groundless” exception.