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Flandreau Public School Dist. #50-3 v. G.A. Johnson Construction7/13/2005
termine the second matter. "Does that power belong primarily to the arbitrators (because the court reviews their arbitrability decision deferentially) or to the court (because the court makes up its mind about arbitrability independently)?" Id. Because the questions of arbitrability and who decides it are threshold issues, we address them first. But, before addressing them, we must clarify how a court decides each question.
[ .] All arbitration analysis begins with recognition of the underlying principle that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT&T Technologies, Inc. v. Communications Workers of America, 475 US 643, 648, 106 SCt 1415, 1418, 89 LEd2d 648, 655 (1986) (citations omitted). "This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration." Id. at 648-649, 106 SCt at 1418, 89 LEd2d at 655 (citation omitted).
[ .] Therefore, in determining the question of whether a dispute should be arbitrated, there is a general presumption of arbitrability if there is an arbitration agreement:
there is a presumption of arbitrability in the sense that " n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."
Id. at 650, 106 SCt at 1419, 89 LEd2d at 656 (citations omitted). See also Rossi Fine Jewelers, Inc. v. Gunderson, 2002 SD 82, , 648 NW2d 812, 816. That presumption applies when a broad arbitration clause is reviewed, such as one agreeing to arbitrate "any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder...." AT&T, 475 US at 650, 106 SCt at 1419, 89 LEd2d at 657 (citation omitted). However, the presumption is inapplicable in the presence of an "express provision excluding a particular grievance from arbitration" or "forceful evidence of a purpose to exclude the claim from arbitration...." Id. (citation omitted).
[ .] The next question of who initially determines whether a dispute should be arbitrated is also governed by contract principles, but it is reviewed utilizing a different presumption. Contractually:
he answer to the "who" question ... is fairly simple. Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, see, e.g., Mastrobuono v. Shearson Lehman Hutton, Inc., 514 US 52, 57, 115 SCt 1212, 1216, 131 LEd2d 76 (1995); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 US 614, 626, 105 SCt 3346, 3353, 87 LEd2d 444 (1985), so the question "who has the primary power to decide arbitrability" turns upon what the parties agreed about that matter.
First Options, 514 US at 943, 115 SCt at 1923, 131 LEd2d at 992-993. However, the presumption is different. Who determines whether the agreement creates a duty to arbitrate the particular grievance is a question for judicial determination unless the parties clearly and unmistakably provide otherwise. AT&T, 475 US at 649, 106 SCt at 1418, 89 LEd2d at 656. The Supreme Court explained:
whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties. ...The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial det
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