Whether To Arbitrate Whether To Arbitrate

In this Memorandum Opinion, the Court of Appeals addressed who has the authority to determine whether arbitration should be compelled: a court or an arbitrator.  The Court noted that, while, as a general matter, the courts decide whether the parties have agreed to arbitrate an particular issue, “the parties may agree to submit the substantive issue of arbitrability to arbitration.”  In this case, the relevant arbitration provision included the following clause: “Whether such Dispute will be subject to arbitration will likewise be determined in such arbitration as will the determination as to whether all procedural conditions precedent to arbitration have been satisfied.”  According to the Court, this provision presents “clear an unmistakable evidence of the parties’ intent to delegate arbitrability to the arbitrator.”  The Court, however, expressed no opinion on whether the plaintiffs’ claims actually should be submitted to arbitration because that, of course, was an issue for the arbitrator to decide.

Continuum Health Services, LLC v. Sheila Cross, No. 05-11-01520-CV