In recent years, the U.S. Supreme Court has granted certiorari in an unusually large number of arbitration cases. While there has been much commentary on the decisions addressing class arbitration, there has been less discussion of those on the subject of arbitrability. This article discusses some of the Supreme Court’s arbitrability decisions to show that, over the last decade or so, the court has been gradually reshaping the legal landscape to grant more authority to arbitrators to resolve questions of arbitrability and to make it harder, in some circumstances, to argue that certain of those questions should be resolved by courts.
Before considering those decisions, however, it is worth saying a word about the term “arbitrability.” A party might assert that a dispute is not arbitrable on any number of grounds: It did not sign the contract; the arbitration clause does not cover the dispute; a condition precedent to arbitration (e.g., mediation) was not met; the contract is not valid on grounds of illegality; a statute requires that the subject matter of the dispute be resolved by the courts. The term “arbitrability” could, from the linguistic standpoint, cover all these issues, i.e., every legal issue requiring resolution before a case can proceed to arbitration on the merits. Some commentators have lamented the broad use of that term, finding it problematic to lump together issues that raise analytically distinct questions. This is no doubt true. The question of whether a state law prohibits the arbitration of a particular subject matter, for example, raises issues of preemption distinct from the issues of contract interpretation that arise when addressing whether a particular dispute falls within the scope of an arbitration clause.
