In Brayman v. KeyPoint Government Solutions, the U.S. Court of Appeals for the Tenth Circuit considered whether a judge or an arbitrator must decide whether an exception in the parties’ arbitration agreement applied. In its analysis, the appellate court harmonized two competing clauses and held that the arbitrator must decide arbitrability. Brayman gives guidance to companies wanting to shore up their arbitration agreements against similar court challenges.
Arbitration is “a matter of contract,” so contracting parties can agree to have an arbitrator decide whether the dispute even belongs in arbitration. Belnap v. Iasis Healthcare, 844 F.3d 1272, 1280 (10th Cir. 2017). This issue is called “arbitrability,” and it is distinct from “the merits of the underlying disputes,” Coinbase v. Bielski, 143 S. Ct. 1915, 1923 (2023). A court will decide arbitrability unless there is “clear and unmistakable evidence” that the parties meant to delegate arbitrability to the arbitrator. First Options of Chicago v. Kaplan, 514 U.S. 938, 943–44 (1995) (alterations removed).