In the last installment of our B-2-B Arbitration series we focused on one of the most important structural aspects of pre-dispute arbitration agreements: the mutual promise to submit disputes to arbitration, what it means and how its performance by the parties through their post-dispute submission defines and delimits the scope of authority parties actually delegate—as opposed topromise to delegate—to arbitrators to resolve particular disputes.

But there are other important structural aspects of arbitration agreements about which business people should be mindful if they wish to make informed decisions about arbitration. While a comprehensive discussion of them would be far beyond the scope of this post, let’s focus briefly on arbitration-agreement terms that bear on the following questions:

1. What disputes am I agreeing to arbitrate?
2. Will the arbitration be “ad hoc” or “administered,” that is, will it be administered and conducted solely by the parties and the arbitrators, or under the rules and auspices of an arbitration provider, such as the American Arbitration Association (“AAA”) or JAMS?
3. Who will decide the disputes submitted to arbitration?

This Part II.B.2(A) will address the first question—which concerns the scope of an arbitration agreement—and future segments will address the other two.

What Disputes Must the Parties Submit to Arbitration?

In our last installment we said that the promise to submit disputes to arbitration is frequently set forth in the first sentence of a pre-dispute arbitration agreement, which might say, for example, “A and B agree that any dispute arising out of or relating to this Agreement shall be submitted to arbitration. . . .” The phrase “any dispute arising out of or relating to this Agreement” defines the universe of disputes that the parties agree to submit to arbitration, and thus, the scope of that mutual obligation.

Like most other questions governed by an agreement between the parties, whether or not a dispute is within the scope of an arbitration agreement is a question of contract interpretation: what does the arbitration agreement have to say about the universe of disputes subject to arbitration and what would a hypothetical, reasonably intelligent person entering into such an agreement think those words meant? But there’s one critical difference between general rules of contract interpretation and the rules of interpretation that apply to scope provisions in arbitration agreements: doubts or ambiguities about what disputes the parties intended to require each other to submit to arbitration are resolved in favor of arbitration.

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