The respective roles of courts and arbitral tribunals is, in one form or

another, the foundational, primal question around which our whole law

of arbitration revolves. True, there is nothing here that hasn’t often been

said before (and often enough – although that can hardly be thought to

make things any better – by me). The outlines should be abundantly

familiar by now. But the endless downpour of cases, and the overgrowth

of commentary – inevitable after heavy rains – suggest that it may still be

necessary to clear away some brush. It is somewhat easier for me to

justify going over all this ground again in this brief exercise, when I bear

in mind Johnson’s admonition that “men more frequently require to be

reminded than informed.”1

 

 

 

It is quite common, in the case law3 and the secondary literature,4 to

characterize the issue we are addressing here in terms of “gateway” or

“threshold” challenges to the arbitration of a commercial dispute. This

frame has all the virtues of metaphor – as it reminds us with some

vividness that we really have to be sure that it is proper to do so before

subjecting an individual to the results of private adjudication. And it has

all the dangers, as well – tempting us to mistake a vague image for some

underlying reality. Like most metaphors, it is rife with ambiguity. After

all, the notion of a “gateway” may, purely as a semantic matter, direct us:

 

(1) to distinguish between issues that must be resolved before a party

may proceed to fully adjudicate the merits of the dispute – issues

that could, after all, include such things as the non-payment of fees,

or the untimely making of an application – and those that need

not be.

 

Or, alternatively, it may ask us to distinguish between issues that must

be resolved before a party may even invoke arbitral jurisdiction – and those

that may instead be left to the arbitrators themselves. And here there are

layers upon layers of ambiguity – for even within this second category, it

is still frequently unclear whether:

 

(2) the metaphor of a “gateway” is being used to evoke what is a

logically prior prerequisite to the jurisdiction of arbitrators – asking

us, that is, to distinguish between those issues that (whenever

raised) will condition the ultimate validity of an award – and those

that do not; or whether

 

(3) the term is being used, instead, to evoke what is merely

chronologically prior to arbitral proceedings – asking us, that is, to

distinguish between those issues that (whoever will have the final

word on the subject) must be resolved before a party is permitted

even to have access to the arbitral tribunal, or to initiate a

proceeding – and those that need not be.

 

These last two questions are often conflated, but ought to best be

kept distinct.6 Only the former, I think – that is, No. (2) above – is truly
challenging – or, at least (I know this is not the same thing), only the