Questions of Arbitrability in the World: Comparing the Jurisprudence of the United States and India

If a matter is not arbitrable, then it may not be arbitrated.2 Arbitrability, generally, refers to the authority that an arbitrator possesses to decide a matter.3 A challenge to that authority is considered a “question of arbitrability.”4 There are three types of questions of arbitrability: (1) substantive challenges that a dispute is not arbitrable under the terms of an arbitration clause; (2) the contention that, despite substantive arbitrability, procedural circumstances exist that prevent arbitration; and (3) “post-award attacks on an arbitrator’s decision.”5 Of those three, “whether a matter is arbitrable under a given arbitration clause” has had recent developments in its jurisprudence.6 This type of challenge is referred to as “substantive arbitrability,”7 which itself contains specific “threshold arbitrability questions.”8 One example of this type of threshold arbitrability question is whether the parties have, by contract, delegated challenges of substantive arbitrability to the arbitrator