It is settled that courts decide independently (i.e., de novo) whether a given dispute is arbitrable unless the parties have agreed to give the arbitrator the "primary" power to decide arbitrability. In First Options of Chicago, Inc. v. Kaplan, this Court held that, in deciding "whether a party has agreed that arbitrators should decide arbitrability," courts must distinguish between (1) "allowing the arbitrator to make an initial (but independently reviewable) arbitrability determination" and (2) agreeing "to be effectively bound" by an arbitrator's arbitrability ruling. 514 U.S. 938, 944, 946-47 (1995). "Courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so." Id., at 944 (cleaned up; emphasis added).
Simply "arguing the arbitrability issue to an arbitrator" is not enough; it "does not indicate clear willingness to arbitrate that issue, i.e., a willingness to be effectively bound by the arbitrator's decision" on arbitrability. Id., at 946. The question presented is:
Whether, as the Second Circuit held, participating in arbitration-including agreeing to a scheduling order as to the timing of jurisdictional objections and making arguments about jurisdiction to the arbitrators-is sufficient to show an agreement to arbitrate arbitrability, and thereby forgo the default de novo standard that governs judicial review of arbitrator decisions on arbitrability.
Appendix A Opinion in the United States Court of Appeals for the Second Circuit (August 26, 2021)
Appendix B Opinion and Order in the United States District Court Southern District of New York (November 25, 2019)
Appendix C Order in the United States Court of Appeals for the Second Circuit (October 14, 2021)
Appendix D Procedural Order No. 1 issued by the Arbitral Tribunal (November 2, 2010)
Appendix E Excerpts from Chapters 1 and 2 of the Federal Arbitration Act, 9 U.S.C. § 1 et seq.