Delegation Clause
A provision within an arbitration agreement that specifically assigns gateway questions — like arbitrability or the validity of the arbitration clause itself — to the arbitrator rather than a court.
A delegation clause sends the 'who decides' question to the arbitrator. Grounded in First Options of Chicago v. Kaplan (1995) and Rent-A-Center, West, Inc. v. Jackson (2010), courts will enforce a delegation clause and let the arbitrator decide even gateway arbitrability issues where there is clear and unmistakable evidence of delegation — incorporating institutional rules that grant the arbitrator competence-competence is commonly treated as sufficient evidence on its own.
Delegation interacts closely with nested severability: a party who wants to keep a gateway fight in court must specifically challenge the delegation clause itself, not just the arbitration clause generally or the contract as a whole. A broad attack on the entire contract still goes to the arbitrator under the Prima Paint and Buckeye Check Cashing severability line of cases.
Juricratic treats a delegation clause as a pre-committed dial that removes an entire branch of court litigation — the arbitrability fight itself — from the tree, shifting that dispute's cost and outcome distribution into the arbitration track rather than the litigation track.
How it actually shows up
Drafters add explicit delegation language, or incorporate institutional rules that include it, to keep threshold arbitrability disputes out of court; a party resisting arbitration must specifically target the delegation clause itself to have any realistic chance at a judicial gateway ruling.
- What is a delegation clause in arbitration?
- It is a provision, or incorporation of rules, that clearly assigns gateway questions like arbitrability to the arbitrator rather than a court.
- How can a party challenge a delegation clause?
- By specifically attacking the delegation clause itself, rather than the arbitration clause generally or the contract as a whole, which under severability doctrine would otherwise still go to the arbitrator.
- Does incorporating institutional rules count as a valid delegation?
- Courts have generally treated incorporation of institutional rules that grant the arbitrator authority to rule on its own jurisdiction as clear and unmistakable evidence of delegation.
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