A Court's Authority to Determine Arbitrability by Looking at the Relevance of an Underlying Contract to a Claim

It is for a court to determine gateway questions in arbitration. However, the contractual natured of an arbitration agreement that requires the parties’ intent was reinforced in First Option of Chicago v. Kaplan, where the Court enforced the parties contractual agreement to have arbitrability determine by an arbitrator so long as there was “clear and unmistakable evidence” that the parties did so agree. The Court enforced the contractual aspects of an arbitration agreement even when the validity of the underlying agreement is in question, requiring that a party specifically challenge the delegation clause in order to revert the question of arbitrability back to the court. In Douglas v. Regions Bank, the fifth circuit adopts a test that addresses the extent of the scope of a delegation clause in an arbitration agreement when the underlying agreement and the disputing claims have no connection.