When Is Arbitral Jurisdiction Over Non-Signatories Delegated To the Tribunal?
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At a recent gathering of arbitration lawyers that I attended, the leader of a seminar concerning the arbitration rights and duties of non-signatories asked if anyone in the audience disagreed with the proposition that under US arbitration law it is for the courts not arbitrators to decide whether and when a non-signatory may or must arbitrate. Not being totally at ease with the stated categorical proposition, I ventured the comment that the delegation of arbitrability issues to arbitrators pursuant to the “First Options” case law may operate as an exception to that rule, and potentially a rather broad exception at that. Not having explored the question very recently, and being unsure if I had embarrassed myself (yet again) with an inaccurate remark, I decided to explore. The results are interesting, lend comfort to my fragile ego, and indicate that the US law version of compétence-compétence (especially “negative compétence-compétence,” i.e., the law of judicial restraint on judicially deciding arbitrability), at least in regard to “who may or must arbitrate” arbitrability questions, has been undergoing some subtle but important changes.
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