When Your Contract Includes an Arbitration Clause: Who Decides the Arbitrability of the Dispute?
Williams Mullen partner Robert K. Cox writes in a post on the firm’s website that the answer to who decides the arbitrability of a dispute — in a case in which a contract includes an arbitration clause — requires consideration involving a multi-step inquiry.
In his article, a court resolving an arbitrability dispute first must determine who decides whether a particular dispute is arbitrable – an arbitrator or the court. Second, if the court determines that it is the proper forum to adjudicate the arbitrability of the dispute, then the court must decide whether the dispute is in fact arbitrable.
“Parties wishing to ensure resolution of ‘gateway’ questions of arbitrability by a specific decision-maker –whether the court or arbitrator –should spell out their preference as clearly as possible in the arbitration clause,” Cox writes.
