The Bermann Objection: Re-Thinking The "Clear And Unmistakable" Manifestation Test Re Who Decides Arbitrability Issues

Published in Law360 (January 18, 2019)

Gateway issues of arbitrability are presumptively for a court, rather than an arbitrator, to decide in the first instance. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). But arbitration is a creature of contract, and the parties to an arbitration agreement ultimately have the power to determine who is to decide such issues. Hence, that presumption may be rebutted by the parties' clear and unmistakable manifestation of their mutual intention that an arbitral tribunal should have the exclusive authority to decide arbitrability issues in the first instance. Id.; Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 77, 83 (2002). While the federal courts have been identifying examples of the practical application of those principles, many questions are still unanswered and some have barely been posed.