Originally from World Arbitration And Mediation Review (WAMR)

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THE UNCITRAL ARBITRATION RULES

AND FIRST OPTIONS: FAILING TO CLEARLY
AND UNMISTAKABLY EVINCE THE INTENT
TO ARBITRATE ISSUES OF ARBITRABILITY
Thomas W. Walsh∗

I. INTRODUCTION
In its 1995 decision in First Options of Chicago, Inc. v. Kaplan,
the United States Supreme Court decided that arbitrability1 of a given
issue is a question for national courts unless there is “clear and
unmistakable” evidence from the arbitration agreement that the
parties intended for arbitrability to be decided in arbitration.2 Since
First Options, U.S. courts have found a variety of formulations of
arbitrator jurisdiction to evince the “clear and unmistakable” intent of
the parties to reserve decisions of arbitrability to the arbitral tribunal.
Indeed, the frequency with which U.S. courts rule arbitration clauses
to grant arbitrators jurisdiction over questions of arbitrability has led
one commentator to question whether any jurisdictional clauses are
still written so narrowly as to exclude arbitrability.3