Chapter 7 - § 7.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 7.1 • INTRODUCTION

The term "arbitrability" refers to whether a dispute is subject to arbitration. Arbitrability issues arise if one party asserts that the dispute is not subject to arbitration. The term "arbitrability" encompasses all of the issues that can be raised and must be determined in order for a dispute to be resolved by arbitration.

While there are multiple ways of phrasing the issues and sub-issues of arbitrability, many courts define the following as the issues of arbitrability, although not necessarily in this order:

• Is there an agreement to arbitrate?
• Does the agreement to arbitrate bind the parties?
• Is the dispute within the scope of the agreement to arbitrate?
• Is the dispute resolution procedure governed by the arbitration statute (i.e., does the agreement call for "arbitration" as used in the statutes)?
• Are there any defenses to the enforcement of the arbitration agreement?
• Are there any conditions precedent to arbitration?

Adopting a dictionary definition, the Tenth Circuit distinguished between arbitrability and the scope of an arbitrator's authority:¹

• "An issue is arbitrable if it is subject to decision by arbitration or referable to an arbitrator or arbiter. . . ."
• "Arbitrability [is used] to refer to the quality or state of being arbitrable."²

The scope of authority question is directed to the scope of power of the arbitrator.

The court further noted that the U.S. Supreme Court had pronounced that "[s]o long as the parties have not specifically agreed to submit the arbitrability question itself to arbitration (i.e., to arbitrate arbitrability), a court will decide independently whether the merits of the parties' dispute is arbitrable."³

This chapter discusses the Colorado and Federal Arbitration Act (FAA) substantive law on these issues of arbitrability. The succeeding chapters will deal with whether the court or arbitrator determines the arbitrability issues and the procedures for staying or compelling arbitration (and resolving the arbitrability issues).

CRUAA

In BRM Construction, Inc. v. Marais Gaylord, L.L.C.,⁴ relying on Galbraith v. Clark,⁵ and City & County of Denver v. District Court,⁶ the Colorado Court of Appeals defined three procedural questions to be resolved by a court (unless delegated to the arbitrator by the arbitration agreement) when a party challenges whether a particular dispute must be arbitrated:

1) Does the agreement contain a valid and binding arbitration clause?
2) If so, does the

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