The Henry Schein opinion and the saga of who decides the "arbitrability question" in the US

Abstract

This article analyses the allocation of competence to rule on jurisdiction under US law – that is, who must decide whether a dispute is subject to arbitration (i.e. the “arbitrability question”), a court or the arbitral tribunal itself. Fist, the article examines how the competence-competence doctrine is construed in the US and explains the main US Supreme Court decisions on the longstanding issue of “who decides arbitrability.” Next, it demonstrates that the US Supreme Court has left important questions unanswered, namely whether the incorporation in the arbitration agreement of rules that delegate to arbitrators the authority to decide the arbitrability question fulfils the “clear and unmistakeable” requirement of intent. Finally, the article concludes that the incorporation of arbitration rules must be considered sufficient to delegate such authority to arbitrators.