Document Type

Book Chapter

Publication Date

1-2024

DOI

https://doi.org/10.1093/oso/9780192848086.003.0026

Abstract

The proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in United States arbitration law, domestic and international alike. From US Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues — “gateway issues” — so seriously implicate the consent of parties to arbitrate their disputes that a party contesting the enforceability of an arbitration agreement on those grounds is entitled to a judicial determination of the matter, while others — “non-gateway issues” — do not. Complicating the gateway/non-gateway distinction is the Supreme Court’s recognition that parties remain free, in an exercise of party autonomy, to reserve the determination of gateway issues exclusively for arbitral determination, thereby foregoing access to a court on those matters. In the Court’s terminology, parties thereby “delegate” to a tribunal exclusive authority to determine issues over which a party would ordinarily be entitled to an independent judicial determination. This chapter considers the capacity for parties to “delegate” such authority to tribunals, including the means by which they may indicate their clear and unmistakable intent to do so.

Disciplines

Courts | Dispute Resolution and Arbitration | Law

Available for download on Sunday, January 18, 2026

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