在上诉中，第四巡回法院裁定地方法院正当驳回了该诉请，但其在推理方面存在错误。

地方法院本不应该就Simply Wireless索赔是否具备可仲裁性的首要问题作出判决，因为当事人已将该问题授权给仲裁员处理。

第四巡回法院解释说，与仲裁的契约性质相符，当事人可以选择就可仲裁性这一首要问题进行仲裁，例如他们的协议是否包含特定的争议内容。由于授权仲裁员就可仲裁性作出裁决 “排除了一般规则”（“cuts against the normal rule”），即可仲裁性的争议应由法院解决。法院必须通过“明确无误”（“clear and unmistakable”）的证据来查明当事人已选择将可仲裁性问题提交给仲裁员解决。

第四巡回法院并不认为当事人同意将“任何因本协议引起或与本协议有关的索赔或争议……提交有约束力的仲裁解决”的协议构成了该明确无误之意图的证据。该等宽泛性的一般仲裁条款并不能足以认定已将可仲裁性的问题授权给了仲裁员。

Fourth Circuit holds that parties delegated question of arbitrability to arbitrator by incorporating JAMS Rules into agreement.

Author: Michael Bloom and Grant Hanessian

Simply Wireless, Inc. v. T-Mobile US, Inc., No. 16-1123 (4th Cir. Dec. 13, 2017)

In Simply Wireless, the Fourth Circuit reviewed a district court’s determination that the claims brought by Simply Wireless against T-Mobile under the parties’ joint marketing and distribution agreement fell within that agreement’s arbitration provision. The parties had agreed that “Any claims or controversies… arising out of or relating to this Agreement…shall be resolved by submission to binding arbitration,” and “[t]he arbitration shall be administered pursuant to the JAMS Comprehensive Rules and Procedures then in effect.” The district court found that Simply Wireless’s claims arose out of the agreement and were, therefore, subject to arbitration.

On appeal, the Fourth Circuit ruled that the district court had properly dismissed the action but had erred in its reasoning. Specifically, the Fourth Circuit held that the district court should not have decided the gateway issue of whether Simply Wireless’s claims were arbitrable because the parties had delegated that issue to the arbitrator.

The Fourth Circuit explained that, consistent with arbitration’s contractual nature, parties may choose to arbitrate gateway questions of arbitrability, such as whether their agreement covers a particular controversy. Because empowering an arbitrator to determine arbitrability “cuts against the normal rule” that arbitrability disputes are for the court to resolve, a court must find by “clear and unmistakable” evidence that the parties have chosen to give arbitrability questions to an arbitrator.

The Fourth Circuit did not hold that the parties’ agreement to submit “any claims or controversies … arising out of or relating to this Agreement … to binding arbitration” constituted evidence of such clear and unmistakable intent. Such expansive general arbitration clauses were not found sufficient to delegate questions of arbitrability to the arbitrator.

The Fourth Circuit held instead that the parties had unmistakably incorporated JAMS Rules into their arbitration agreement, including Rule 11(b), which provides that “arbitrability disputes . . . shall be submitted to and ruled on by the Arbitrator.” Thus, the district court did not have authority to decide that issue and should have remanded Simply Wireless’s action to an arbitrator to decide it.