Who Arbitrates Arbitrability?

Addressing for the first time the question of whether the court or the arbitrator decides arbitrability, a panel of the U.S. Court of Appeals for the Ninth Circuit reversed the denial of a motion to compel arbitration and concluded that incorporation of the UNCITRAL (United Nations Commission on International Trade Law) arbitration rules into a commercial contract constitutes clear and unmistakable evidence that the parties intended to delegate questions of arbitrability to the arbitrator.  Oracle America v. Myriad Group AG, Case No. 11-17186 (9th Cir., July 26, 2013) (Christen, J.).  This holding represents is an exception to the general rule that the question of arbitrability is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.