Originally from:
The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition - Hardcover
The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition - Electronic
CHAPTER 4
DETERMINING JURISDICTION AND
ARBITRABILITY
Arbitrators should ensure that challenges to jurisdiction and
arbitrability are resolved correctly, promptly, and efficiently by
the appropriate decision maker.
I. INTRODUCTION
Arbitrators should be aware that the question whether
challenges to jurisdiction and arbitrability are to be
decided by courts or arbitrators is a subject of complex
and evolving case law.
Arbitrators generally have authority over only those parties who have
agreed to arbitrate and those disputes that fall within the terms of the
parties’ written arbitration agreement. Technically, arbitral authority over
persons should properly be referred to as jurisdiction, whereas arbitrability
should refer to whether the subject matter of the parties’ dispute is within
the scope of the arbitration agreement or whether public policy bars
arbitration of certain kinds of disputes, for example, claims for violation of
statutory rights. (Although the United States Supreme Court has frequently
held that disputes that arise from federal statutes, such as antitrust,
securities, racketeering, and employment disputes—both statutory and
otherwise—are arbitrable, there always remains the possibility that Congress
will exempt some statute-based claims from being arbitrated.) The terms
jurisdiction and arbitrability are often used interchangeably in case law and
literature and such usage unavoidably carries over to this chapter.
When parties assert that the arbitrator lacks authority over the parties or
the subject matter, the question naturally arises regarding whether
arbitration is the proper forum to decide that issue. In certain
circumstances, questions of jurisdiction and arbitrability are properly
resolved only by a court. Often, however, such questions can and should
