Originally from Navigating Maritime Arbitration: The Experts Speak - Second Edition

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I. ARBITRATION: A CREATURE OF CONTRACT

The parties to an arbitration agreement are those that have contractually agreed to that forum. “Arbitration is contractual by nature—’a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.”  The courts or in some instances arbitrators will look to the evidence concerning the making of the contract to determine the true parties to the agreement.  Under U.S. law, arbitration agreements contained in charter parties or ocean bills of lading are maritime contracts.  U.S. admiralty law applies usual contract construction rules, including those of agency, to maritime contracts in determining who the parties to the contract are.  

II. CONSTRUING THE CONTRACT: COURT - ARBITRATORS 

Under U.S. law, it is generally for the court, not the arbitrators, to decide the threshold question of whether there is a binding agreement to arbitrate.  “The law generally treats arbitrability as an issue for judicial determination ‘unless the parties clearly and unmistakably provide otherwise.’”  Moreover, even where the issue of whether the purported “parties to the contract” are bound to an arbitration agreement is given to the arbitrators, the courts “must always ascertain for itself whether [a] resisting party is subject to a valid arbitration agreement, because even the broadest arbitration clause cannot bind a party who never agreed to it.”  Accordingly, “[t]he issue of whether the parties are obliged to arbitrate their dispute breaks down into two questions: ‘[i] whether the parties have entered into a valid agreement to arbitrate, and, if so, [ii] whether the dispute at issue comes within the scope of the arbitration agreement.’”