Originally From World Arbitration and Mediation Review (WAMR)

I. INTRODUCTION

The Supreme Court of the US coined the notion of there being a “gateway” to arbitration in its 2002 decision in Howsam v. Dean Witter Reynolds, Inc., which defined “gateway” issues as “dispositive” questions that determine whether an issue will “proceed to arbitration on the merits.”1 In cases governed by the Federal Arbitration Act, the Court explained, “a gateway dispute about whether the parties are bound by a given arbitration clause raises a ‘question of arbitrability’ for a court to decide;”2 however, there may be certain “gateway matters” of arbitrability that the arbitrator is empowered to decide.3

Under Howsam, therefore, a US court’s “gateway” role with respect to arbitration is generally limited to determining whether there exists an arbitration agreement between the parties that covers the dispute. This inquiry may be significant when there are genuine threshold questions concerning the “consent” of the parties to arbitrate (e.g., in disputes over “class action arbitration” and/or involving non-signatories), but in other situations, issues of “consent” are less acute. Indeed, under First Options and Howsam, the “gateway” role of courts is narrower still where Thus, in Howsam, the Court held that a contractual statute of limitations, applicable to a securities arbitration, was not a “gateway” matter at all, but a procedural question exclusively for the arbitrators to consider.