Regarding the Edward Brill and Rebecca Berkebile article, "The Arbitration Trilogy: A Look at the Supreme Court's Recent Arbitration Jurisprudence" (Law.com, 11-2-2010), please note that similar developments are underway in state statutory law. On August 4, 2000, the National Conference of Commissioners on Uniform State Laws adopted the Revised Uniform Arbitration Act ("RUAA"). Fifteen states have adopted a version of the RUAA as of September 2010, and more are sure to follow. Section 6 of the RUAA addresses forum selection on issues of arbitration jurisdiction and arbitrability. Section 6(b) provides that courts are to decide: (1) whether an agreement to arbitrate exists, and (2) whether a dispute is subject to an agreement to arbitrate. Section 6(c) provides that arbitrators are to decide: (1) whether a condition precedent to arbitrability has been fulfilled, and (2) whether a contract containing an arbitration clause is enforceable.
But also note that RUAA Section 4(a) states that these provisions may be waived so that parties can agree to have the arbitrator decide Section 6(b) issues. Moreover, arbitration provisions may mandate use of rules of specific ADR providers, and such provisions may address jurisdiction and arbitrability. For example, in construction law disputes, AAA Rule R-9 vests full authority in the arbitrator to decide these issues. As well, JAMS Engineering and Construction Rule 11(c) expressly provides that arbitrators are to decide jurisdictional and arbitrability disputes.
Thus federal Supreme Court jurisprudence, and state statutory enactments, are enlivening ADR practice on core issues affecting the judicial/arbitration forum choice.