Answer ... This is not specified by the Federal Arbitration Act. However, it may be addressed by the arbitration rules that the parties have adopted in the arbitration agreement. For example, Rule 7(c) of the American Arbitration Association Rules 2021 provides that: “A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of the answering statement to the claim or counterclaim that gives rise to the objection. The arbitrator may rule on such objections as a preliminary matter, or as part of the final award.”

If the rules adopted by the parties do not address this issue or no arbitration rules are specified within the arbitration agreement, the usual common law principles will apply. Therefore, applying the doctrine of estoppel (see, in the context of arbitration, J Griffin & Co v Beach Club II Homeowners Ass’n, 384 F3d 157, 160-61 (4th Cir 2004)), a party would be required to object to jurisdiction before the substantive proceedings begin and in its first correspondence to the opposing parties and written submissions to the tribunal.

Answer ... Yes.

Parties to an arbitration agreement may submit the issue of arbitrability to the arbitrator if the agreement contains clear and unmistakable evidence that the parties intended the question of arbitrability to be decided by the arbitrator (Rent-A-Center, West, Inc v Jackson, 561 US 63, 79 (2010)); AT&T Tech, Inc, v Comm Workers, 475 US 643 (1986)). Therefore, arbitrators have jurisdiction to determine whether a particular dispute is arbitrable where the arbitration agreement is “inclusive, categorical, unconditional and unlimited” (Benihana, Inc v Benihana of Tokyo, LLC, 784 F3d 887, 898 (2d Cir 2015)). This will clearly be shown where the parties have adopted a set of institutional rules which provide that the tribunal can rule on its own jurisdiction.

However, in Howsam v Dean Witter Reynolds, Inc, 537 US 79, 123 S Ct 588 (2002), the Supreme Court of the United States considered whether the applicability of a time limit rule for demanding arbitration under a securities contract was to be decided by the court or arbitrators. The court noted that as a general principle, the question of arbitrability – that is, whether the parties have submitted a particular dispute to arbitration – is an issue to be decided by the court.

Answer ... There is a presumption that the courts will hear any objections as to whether the parties agreed to be bound by an arbitration clause and, if so, whether a dispute is within the scope of an arbitration clause (First Options of Chicago, Inc v Kaplan, 514 US 938, 943 (1996)). Therefore, parties can apply to the courts as they see fit to challenge jurisdiction, provided that they are not prevented from doing so by way of the doctrine of estoppel or any other relevant common law principles, or the language of the arbitration agreement’s delegation clause which may clearly and unambiguously provide that the arbitral panel is to decide all matters concerning arbitrability, including jurisdiction. This area of the law is developing. For example, whether incorporation of an arbitral body’s rules qualifies as "clear and unmistakeable" delegations of authority under First Options is a matter of ongoing dispute (Cf. Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 202 L. Ed. 2d 480 (2019)).