Originally from World Arbitration And Mediation Review (WAMR)

I will focus this presentation on what has come to be called the “gateway problem.” There is a gateway problem, at least in international commercial arbitration, quite simply because there are often situations when one party asserts an obligation to arbitrate and another party denies that obligation. To focus on this it is helpful to think of two scenarios. The first scenario is one where an arbitration is initiated and the respondent takes it upon himself or herself or itself to go to a court for some measure of relief. That relief might be declaratory; it might even be an antiarbitration injunction if that is available in that jurisdiction. It could be a claim of its own on the same subject matter, and then unquestionably the enforceability of the arbitration agreement will surface before that court.

Much more often things do not begin with the arbitration; they begin with litigation that arguably should be the subject of arbitration, and so the claimant is not seeking to arbitrate. It is, if you will, the defendant who seeks arbitration, if such a party is bound to do anything at all. If neither of these scenarios occurs, that is to say if there is no arbitration launched which precipitates a trip to a court by the other party, or there is no attempt to bypass arbitration by bringing a litigation, then the gateway problem, in some ways, begins to disappear and that, of course, is not what I want to discuss. If neither scenario happens, an arbitration will presumably ensue, and all questions that we might want to call a gateway question, are open to deliberation by the arbitral tribunal. If competence-competence means anything, it certainly means that not only the merits, but also the threshold issues are open for determination by the arbitral tribunal. But if one of the scenarios described above does come to pass, which, if judged by the volume of cases we are looking at in the Restatement is likely, then it appears that resistance to arbitration in the courts is very common. If it does happen a court must decide which threshold questions, if any, are appropriate for it to resolve.