Arbitrability is arbitrable under UNCITRAL rules

When there is a motion to compel arbitration, one question that arises is whether the dispute is arbitrable -- that is, whether the parties have agreed to arbitrate the specific dispute involved. As a general rule, that is a question for the court -- not the arbitrator -- to decide. However. . . . . . .

If the arbitration agreement "clearly and unmistakably" provides for the arbitrator to decide the question of abitrability, then that's what will happen.

In Oracle America v. Myriad Group (9th Cir 07/26/2013), involving a copyright and trademark infringement action, the parties incorporated the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules. The 9th Circuit held, consistent with the 2nd and DC Circuits, that this constitutes clear and unmistakable evidence that the parties to the contract intended to delegate questions of arbitrability to the arbitrator.

Moral of the story: Courts will enforce your arbitration agreement as written.

Hat Tip: Jeremy Telman at ContractsProf Blog.