A fundamental principle of arbitration law is that parties may only be compelled to submit an issue to arbitration if they agreed to do so. The question of when an arbitrator, instead of a district court, can decide the arbitrability of an issue has been taken up by the courts in recent years. In First Options of Chicago, Inc. v. Kaplan, the Supreme Court stated that an arbitrator may decide questions of arbitrability only when the parties have "clearly and unmistakably" agreed to defer such questions to an arbitrator. Since First Options, the lower courts have attempted to define when parties have satisfied the clear and unmistakable standard. The question of what constitutes clear and unmistakable evidence remains to be definitively answered. Must it be an express statement of an agreement developed through the bargaining process, or can it be something less, like a boilerplate arbitration provision that incorporates intent through an outside document? The Supreme Court has only issued minimal guidance on the subject.
Mark A. Mulchek,
Arbitration by Accident: The Consequence of Unintentionally Meeting the Clear and Unmistakable Evidence Standard,
2007 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2007/iss2/10