Rethinking Who Decides Gateway Arbitrability Issues

Law360 (January 18, 2019, 2:17 PM EST) -- Gateway issues of arbitrability are presumptively for a court, rather than an arbitrator, to decide in the first instance.[1] But arbitration is a creature of contract, and the parties to an arbitration agreement ultimately have the power to determine who is to decide such issues. Hence, that presumption may be rebutted by the parties' clear and unmistakable manifestation of their mutual intention that an arbitral tribunal should have the exclusive authority to decide arbitrability issues in the first instance.[2][3] While the federal courts have been identifying examples of the practical application of those principles, many questions are still unanswered and some...

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