“[T]he arbitrability of a dispute may itself be subject to arbitration if the parties have clearly so provided in the agreement. Of course, the court must decide the threshold question whether the parties have in fact conferred this power on the arbitrator. If they have, the court should stay proceedings pending the arbitrator’s determination of his own jurisdiction, unless it is clear that the claim of arbitrability is wholly groundless.”
How later courts described this case
- “[T]he arbitrability of a dispute may itself be subject to arbitration if the parties have clearly so provided in the agreement. Of course, the court must decide the threshold question whether the parties have in fact conferred this power on the arbitrator. If they have, the court should stay proceedings pending the arbitrator’s determination of his own jurisdiction, unless it is clear that the claim of arbitrability is wholly groundless.”
Written by the judges who cited it.
The opinion
ALDRICH, Senior Circuit Judge
(concurring):
With great respect, I am not entirely sure of the full extent that my brethren are in disagreement, and perhaps I am being over-simplistic. However, it seems to me that what the parties are disputing — whether the claim for compensation vested while the contract was in force, and therefore survived its termination— is plainly a grievance within the meaning of the arbitrability clause, and neither we, nor the arbitrator, face the issue of arbitrability. The only issue, in other words, is whether the grievance is sound, which, of course, is for the arbitrator.
I see three possibilities open to court decision in this area: that there is an arbitrable issue of substance; that there is an arbitrable issue of whether the issue of substance is one subject to arbitration; or there is no arbitrable issue at all. If Judge Widener denies this first possibility, then I must disagree with him. At the same time, I think I see what troubles him. If the arbitrator, when appointed, rendered a decision to the effect that he saw no arbitrable issue, I don’t know what a court could do about it. We do not face that question and I doubt if a court ever would. However, I do not see how, in theory, a court that can, in the proper circumstances, rule that there is no question to be arbitrated, cannot equally rule that there is one. Indeed, that is what it does every time it instructs the arbitrator that there is an arbitrable issue whether the arbitration clause covers the substantive matter sought to be arbitrated.