An arbitration agreement may provide expressly whether a court or an arbitrator should decide the issue of “arbitrability”—i.e., whether an arbitration agreement actually binds the party and applies to the dispute at hand.1 In the absence of an express allocation of this authority, courts presume that contracting parties intended for the courts to determine arbitrability.2 Substantive arbitrability questions, however, must be differentiated from conditions precedent to hearing the case—such as certain exhaustion requirements and filing periods. Such procedural questions are presumptively within the domain of the arbitrator.3
The Supreme Court has grappled with the distinction between “substantive” and “procedural” gateway questions to arbitrability in domestic cases.4 This term, in BG Group Plc v. Republic of Argentina,5 the court applied the framework developed in the domestic context to a business investment treaty between the United Kingdom and Argentina. This case is of considerable importance to the field of international arbitration, as well as domestic arbitration.
