In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, the court of appeals should not accept the district court's findings of fact, but rather apply de novo standard of review. This note will examine the First Options decision and discuss the effects of the case on lower court decisions in applying its reasoning. The purpose of this article is not to argue that the power to determine the jurisdiction of the arbitral tribunal should rest with the courts rather than with the arbitral tribunal, nor vice versa. Rather, the purpose of this article is to point out the need for clearer guidance, as well as provide insight into some of the potential solutions to these problems.
First Options of Chicago, Inc. v. Kaplan and the Kompetenz-Kompetenz Principle ,
2 Pepp. Disp. Resol. L.J.
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