Commercial Litigation and Arbitration

Party Resisting Confirmation of Arbitration Award Is Entitled to Judicial Determination of Arbitrability Absent Clear and Unmistakable Evidence That Parties Agreed to Arbitrate Or Submit Issue to Arbitrator

Schneider v. Kingdom of Thailand, 2012 U.S. App. LEXIS 16508 (2d Cir. Aug. 8, 2012):

"The question whether the parties have submitted a particular dispute to arbitration, i.e., the 'question of arbitrability,' is 'an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.'" Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting AT & T Techs., Inc. v. Commc'ns Workers, 475 U.S. 643, 649 (1986)). Thus, a party resisting confirmation of an arbitration award is entitled to an independent court review of a question of arbitrability unless there is clear and unmistakable evidence that the parties agreed to arbitrate that question. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 947 (1995). "'Question[] of arbitrability' is a term of art covering 'dispute[s] about whether the parties are bound by a given arbitration clause' [i.e., formation] as well as 'disagreement[s] about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy' [i.e., scope]." Republic of Ecuador v. Chevron Corp., 638 F.3d 384, 393 (2d Cir. 2011) (quoting Howsam, 537 U.S. at 84).

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