By choosing arbitration under the International Chamber of Commerce rules, the parties clearly delegated to the arbitrator questions regarding the scope of the arbitration clause including whether it allowed impleader of a claim against a surety that was not a party to the arbitration clause. By choosing to arbitrate under the ICC (International Chamber of Commerce) Rules, the parties clearly and unmistakably chose to have the arbitrators decide arbitrability issues, such as the scope of the arbitration clause. Rule 6(3) of the ICC Rules allows the arbitrator to determine any question regarding existence, validity or scope of the arbitration clause. Here, plaintiff entered into three related contracts, a construction contract, a surety bond, and a guaranty. Only the guaranty contained an arbitration clause, but it expressly allowed any party to the agreement to implead other parties in the arbitration. Thus, whether the arbitration clause allowed the guarantor to implead the surety bond company, which was not a party to the guaranty, raised a question of the scope of the guaranty’s arbitration clause which the district court should have left to the arbitrator to decide.
Ninth Circuit Court of Appeals (Rakoff, J.); July 10, 2017; 2017 WL 2925013