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ARBITRATION WORLD Who Decides Who Gets to Decide? Challenging the Competence of U.S.—Seated Arbitrators to Determine Arbitrability of a Dispute Max Louik (Pittsburgh), John P. Estep (Washington, D.C.), and Kaitlin C. Dewberry (Pittsburgh) When a dispute arises between parties to a contract, the dispute resolution provisions are naturally the first place to look. If the contract contains an arbitration clause, best practices require a thorough examination to determine an important threshold question: who will decide—the arbitrators or the courts—whether the parties agreed to submit a particular dispute to arbitration? While the question may be simple, finding an answer can be rather complex. If a party believes the dispute falls outside the scope of the arbitration agreement and seeks to resist the jurisdiction of the tribunal to hear the case, it generally has three options: (1) raise the jurisdictional challenge before the tribunal, (2) default and then resist enforcement of an award, or (3) challenge the tribunal’s jurisdiction in a court where the arbitration is seated. This article addresses the third scenario for international arbitral tribunals seated in the United States and discusses how American courts answer the question of who gets to decide whether a particular dispute is arbitrable. DEFAULT RULE: COURTS DECIDE The interpretation of international arbitration agreements is typically governed by U.S. federal law. As recognized by the U.S. Supreme Court, arbitration is strictly a matter of consent. Thus, “it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.” First Options of Chicago, Inc. 64 K&L Gates: ARBITRATION WORLD