The U.S. Supreme Court’s recent decision in Henry Schein v. Archer and White Sales, No. 17-1272, 2019 WL 122164 (Jan. 8, 2019) has attracted much attention in that it has been viewed as further support for the court’s strong preference for enforcing the terms of arbitration agreements as written. But the undercurrent in Henry Schein was the competence-competence principle—that is, does U.S. law apply the principle that arbitrators are the ones who are competent to decide whether a particular dispute is arbitrable? In this article, we look at the development of that issue under U.S. law and compare it to how other countries address the issue.

The Development of U.S. Law

In 1986, the Supreme Court held that the question of arbitrability is undeniably an issue for judicial determination. It said, “unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” AT&T Technologies v. Communication Workers of America, 475 U.S. 643, 649 (1986).