
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-2188                              PAINEWEBBER INCORPORATED,                                Plaintiff, Appellant,                                          v.               MOHAMAD S. ELAHI, KOKAB MOAREFI ELAHI AND MARYAM ELAHI,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Steven L. Manchel  with whom David  A. Forman and  Choate, Hall  &            _________________            ________________      _______________        Stewart were on brief for appellant.        _______            Philip M.  Giordano with whom Giordano & Champa, P.A. was on brief            ___________________           _______________________        for appellees.                                 ____________________                                     July 3, 1996                                 ____________________                      STAHL, Circuit  Judge.  Mohamad S.  Elahi, his wife                      STAHL, Circuit  Judge.                             ______________            Kokab Moarefi Elahi, and  their daughter Maryam Elahi, former            clients  of  the  investment  firm  PaineWebber  Incorporated            ("PaineWebber"),   sought   arbitration  of   several  claims            stemming  from ill-fated  investments.   PaineWebber  filed a            complaint  in   federal  district   court  seeking   to  stay            arbitration, alleging that the  claims were time-barred under            the terms of the arbitration  agreement.  The district  court            dismissed  PaineWebber's complaint  and  granted the  Elahis'            motion to  compel arbitration.   PaineWebber appeals,  and we            affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      The  Elahis  opened  investment brokerage  accounts            with PaineWebber in 1986  and executed a "Client's Agreement"            providing that:                      all controversies which may arise between                      [the  Elahis and  PaineWebber] concerning                      any transaction in  any account(s) or the                      construction,  performance  or breach  of                      this  or any other agreement between [the                      Elahis  and PaineWebber] .  . .  shall be                      determined    by   arbitration.       Any                      arbitration shall be  in accordance  with                      the  rules in  effect of  either the  New                      York Stock Exchange, Inc., American Stock                      Exchange,  Inc., National  Association of                      Securities   Dealers,   Inc.,  or   where                      appropriate,  the  Chicago Board  Options                      Exchange or National Futures Association,                      as the [client] may elect.                                         -2-                                          2            It also  provided that "[t]his agreement  and its enforcement            shall be construed and governed  by the laws of the  State of            New York."                      Some  time in 1994, the Elahis notified PaineWebber            of their intention to  pursue claims that one of  its brokers            had sold them unsuitable  and highly speculative investments,            falsely  guaranteed  a  twelve-percent  minimum  return,  and            deceptively assured them  that their investments were  secure            when  in fact  they had  already lost  a significant  part of            their  initial investment.  On August 3, 1994, the Elahis and            PaineWebber executed  an agreement  to toll, as  of June  28,            1994, the  running of all  statutes of limitations  and other            defenses based  on the passage of time,  apparently hoping to            reach a  negotiated settlement.   The  effective date  of the            tolling agreement was more than seven years after the Elahis'            last purchase of an investment from PaineWebber.                        On December 29, 1994,  the Elahis filed a Statement            of Claim with the National Association of Securities Dealers,            Inc. ("NASD"),  seeking arbitration  of claims arising  under            the  federal  securities  laws,  Massachusetts  statutes, and            various Massachusetts common law theories of fraud and breach            of fiduciary  duty.   PaineWebber responded by  bringing this            action for declaratory and  injunctive relief, seeking to bar            the arbitration of the  Elahis' claims.  PaineWebber asserted            that the arbitration rules of the NASD precluded claims filed                                         -3-                                          3            more  than six years after the purchase of the investments at            issue.   Specifically, PaineWebber  pointed to Section  15 of            the NASD Code of  Arbitration Procedure ("section 15"), which            provides:                      Time Limitation Upon Submission                      _______________________________                           Sec.  15.   No  dispute,  claim,  or                      controversy   shall   be   eligible   for                      submission to arbitration under this Code                      where six (6) years have elapsed from the                      occurrence  or event  giving rise  to the                      act  or  dispute, claim,  or controversy.                      This section shall not  extend applicable                      statutes  of  limitations,  nor shall  it                      apply to  any case  which is  directed to                      arbitration  by  a  court   of  competent                      jurisdiction.            PaineWebber  postulated  that  the  Elahis' claims  were  not            "eligible   for  submission  to   arbitration"  because  they            concerned securities  purchased more than  seven years before            the effective date  of the tolling  agreement and over  eight            years before  the claim  for arbitration was  filed with  the            NASD.  The Elahis' countered by filing motions (1) to dismiss            PaineWebber's complaint  and (2) to compel  arbitration under            the Federal Arbitration Act, 9 U.S.C.   4.                      The  district court  granted  the Elahis'  motions.            The  court  found   that  the  parties  had  signed  a  valid            arbitration  agreement  covering  disputes   over  investment            transactions, and  consequently ruled that  the applicability            of the time-bar provision of section 15 was a question to  be                                         -4-                                          4            determined  by  the   arbitrator  rather  than  the   court.1            PaineWebber appeals.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                      PaineWebber argues  on appeal  that the section  15            time bar makes the Elahis' claims ineligible for arbitration,            and that the  court, not the arbitrator must therefore decide            the timeliness  question.   The  issue  before us,  then,  is            whether the time-bar provision is to be construed and applied            by the  arbitrator  or  by the  court.2   We  are  the  tenth            circuit court  to address that question;  our sister circuits            are split  five-to-four.   The Third, Sixth,  Seventh, Tenth,            and Eleventh Circuits  have held that  the court must  decide            the applicability  of the  section 15  time bar;  the Second,            Fifth,  and Eighth,  and  Ninth Circuits  have held  that the                                            ____________________            1.  The district  court based  its decision on  its published            opinion in a similar  case, PaineWebber, Inc. v. Landay,  903                                        _________________    ______            F. Supp. 193 (D. Mass. 1995), which the court incorporated by            reference  in its  unpublished memorandum  and order  in this            case.            2.  Ultimately,  the arbitrator  or the  court will  probably            need to  determine (1) whether the  only relevant "occurrence            or event" triggering the time bar was the Elahis' purchase of            investments, or whether the time bar should be measured  from            the date of alleged  subsequent acts or omissions related  to            the  investments, and (2) whether the time bar is absolute or            subject  to  equitable tolling.    We need  not  decide those            issues.   We are faced  solely with the  question whether the            district  court correctly referred the time bar issues to the            arbitrator, or should have decided them itself.                                         -5-                                          5            arbitrator decides.3   In our  view, this  body of  appellate            caselaw leaves important aspects of the  problem unaddressed,            as  we  shall explain.    The  relevant Supreme  Court  cases            provide  guidance, but  do not point  clearly to  the correct            result  in this  case.   Consequently, we  embark on  our own            analysis.                      Because  this appeal  presents a  question of  law,            appellate  review is plenary.  See McCarthy v. Azure, 22 F.3d                                           ___ ________    _____            351, 354 (1st Cir. 1994) (applying de novo review to district                                               _______            court's ruling on scope of arbitration agreement); Commercial                                                               __________            Union Ins. Co.  v. Gilbane Bldg. Co., 992 F.2d  386, 388 (1st            ______________     _________________            Cir.  1993) (explaining  that determination  of arbitrability            depends on  contract interpretation,  which is a  question of            law).                      PaineWebber presents two  basic arguments: (1) that            the parties' contractual choice of New York law was made with            the intent to require the court, not the arbitrator, to apply            the  section 15 time bar,  as New York  caselaw requires; and            (2) that, under federal law, the time bar presents a question            of arbitrability to be  decided by the court, in  the absence            of  clear  evidence  that  the  parties  intended  to  submit            arbitrability  determinations to  arbitration.    We  address            these arguments in order.                                            ____________________            3.  The  cases  are  listed   and  discussed  infra  in  part                                                          _____            II.B.1.a.                                         -6-                                          6            A.  Effect of the Choice-of-Law Clause            ______________________________________                      The  agreement between  PaineWebber and  the Elahis            provides that "[t]his agreement  and its enforcement shall be            construed and governed by the laws of the State of New York."            Relying  on that choice-of-law  provision, PaineWebber argues            that  we must reverse the district  court's order because New            York  courts have  held  that courts,  not arbitrators,  must            decide  the applicability of the  section 15 time  bar.  See,                                                                     ___            e.g., Merrill  Lynch, Pierce, Fenner & Smith, Inc. v. Ohnuma,            ____  ____________________________________________    ______            630 N.Y.S.2d 724, 725  (N.Y. App. Div. 1995);  Merrill Lynch,                                                           ______________            Pierce, Fenner &  Smith, Inc. v. DeChaine, 600  N.Y.S.2d 459,            _____________________________    ________            460 (N.Y. App. Div.), leave to appeal denied, 624 N.E. 2d 694                                  ______________________            (1993).                        Thus, our first task is to determine if the choice-            of-law provision  settles the  question whether the  court or            the arbitrator decides the effect of the section 15 time bar.            Somewhat paradoxically, federal arbitration law  dictates the            effect of the clause selecting New York law.                      Section 2  of the Federal Arbitration Act ("FAA"),4                                            ____________________            4.  Section 2 of the FAA provides in pertinent part that:                      A written  provision in . .  . a contract                      evidencing   a    transaction   involving                      commerce  to  settle  by   arbitration  a                      controversy  thereafter  arising  out  of                      such contract  or transaction . . . shall                      be  valid, irrevocable,  and enforceable,                      save upon such grounds as exist at law or                      in  equity  for  the  revocation  of  any                      contract.                                         -7-                                          7            "is a  congressional declaration of a  liberal federal policy            favoring  arbitration  agreements, notwithstanding  any state            substantive or  procedural policies to the  contrary."  Moses                                                                    _____            H.  Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1,            _______________________    _____________________            24  (1983).   Although "[t]he  FAA contains  no express  pre-            emptive provision,"  and "[does not] reflect  a congressional            intent to occupy the entire field of arbitration," Volt Info.                                                               __________            Sciences, Inc. v. Board of  Trustees of Leland Stanford,  Jr.            ______________    ___________________________________________            Univ., 489 U.S. 468, 477 (1989), it was intended to "create a            _____            body of federal substantive law of arbitrability,  applicable            to any arbitration agreement within the coverage of the Act."            Moses H. Cone,  460 U.S. at 24.  There is no dispute that the            _____________            agreement between these  parties is within  the scope of  the            FAA, because it  is clearly one "involving  commerce" as that            phrase was broadly construed in Allied-Bruce Terminix Cos. v.                                            __________________________            Dobson, 115 S.  Ct. 834,  839-43 (1995).   And, the  question            ______            whether  a court or an arbitrator applies the section 15 time            bar relates  closely to "arbitrability," so we must apply the            federal  common  law  of  arbitrability  that  has  developed            pursuant to the FAA.  See Moses H. Cone, 460 U.S. at 24.                                  ___ _____________                      The "primary purpose" of the FAA is to ensure "that            private  agreements  to arbitrate  are enforced  according to            their terms."  Volt, 489 U.S. at 479.  "Arbitration under the                           ____            Act is a  matter of  consent, not coercion,  and parties  are                                            ____________________            9 U.S.C.   2.                                         -8-                                          8            generally  free to  structure  their agreements  as they  see            fit."  Id.   Thus, whether an  issue is to be  decided by the                   ___            arbitrator is  a matter  of the parties'  contractual intent.            See Mastrobuono  v. Shearson Lehman Hutton, Inc.,  115 S. Ct.            ___ ___________     ____________________________            1212, 1216 (1995).                      The Supreme  Court has explained that  the FAA "not            only 'declared  a national policy favoring  arbitration,' but            actually 'withdrew  the  power of  the  states to  require  a            judicial  forum  for  the  resolution  of  claims  which  the            contracting parties agreed to  resolve by arbitration.'"  Id.                                                                      ___            at 1215-16 (quoting  Southland Corp. v. Keating, 465  U.S. 1,                                 _______________    _______            10 (1984)).  More recently,  the Supreme Court explained that            if a state law  is applicable to contracts generally,  it may            be applied to arbitration agreements, but a state law that is            specifically and solely  applicable to arbitration agreements            is  displaced  by   the  FAA.    Doctor's  Assocs.,  Inc.  v.                                             ________________________            Casarotto, 116 S. Ct. 1652,  1655-56 (1996).  Therefore,  New            _________            York  law cannot require the  parties in this  case to submit                             _______            the  question of  the section  15 time  bar to  a  court; the            question  is  whether  the parties  intended,  through  their                                                ________            general choice of New  York law, to adopt for  themselves the            New  York  caselaw requiring  that  courts,  not arbitrators,            decide the time bar.                      Based    on    the   "national    policy   favoring            arbitration," Mastrobuono,  115 S.  Ct. at 1216,  the Supreme                          ___________                                         -9-                                          9            Court in Mastrobuono held that the choice-of-law provision in                     ___________            a broker-client agreement did not indicate an intent to adopt            New York  caselaw barring arbitrators  from awarding punitive            damages.   115 S. Ct. at  1215-18.  The Court  found that the            parties'  choice of  New  York law  was  not "an  unequivocal            exclusion of punitive damages," id. at 1217, and [a]t most  .                                            ___            . .  introduce[d] an ambiguity into  an arbitration agreement            that would otherwise allow punitive damages awards."   Id. at                                                                   ___            1218.   The Court resolved  that ambiguity both  "in favor of            arbitration,"  id., and  "against the  interest of  the party                           ___            that  drafted it," id. at 1219, and found that the choice-of-                               ___            law clause  did not speak  to the power of  the arbitrator to            award punitive damages, id.                                    ___                        Following  the principles and  analysis set forth            in Mastrobuono,  we (like the  district court) find  that the               ___________            choice-of-law clause  in this  case is  not an expression  of            intent to  adopt  New York  caselaw requiring  the courts  to            apply  section 15.    Here, the  breadth  of the  arbitration            clause --  encompassing "all  controversies . .  . concerning            any transaction"  as well as the  "construction, performance,            or breach" of the agreement  -- militates against reading the            choice-of-law clause  as a  limit on the  arbitrator's power.            Moreover,  the agreement provides  that "arbitration shall be            in accordance with the rules in  effect of the . . . [NASD],"            which  further  undermines the  likelihood  that the  parties                                         -10-                                          10            intended  to adopt  arbitration rules  contained in  New York            caselaw.    In sum, we can  do no better than  to borrow from            Mastrobuono:            ___________                      We  think the  best way to  harmonize the                      choice-of-law    provision    with    the                      arbitration  provision  is  to read  "the                      laws  of  the  State  of  New   York"  to                      encompass substantive principles that New                      York  courts  would  apply,  but  not  to                      include   special   rules  limiting   the                      authority  of  arbitrators.    Thus,  the                      choice-of-law provision covers the rights                      and  duties of  the  parties,  while  the                      arbitration clause covers arbitration . .                      . .            Id. at 1219.            ___                      Thus,  relying  on Mastrobuono,  we  hold  that the                                         ___________            parties' contractual choice of New York law  does not require            a  judicial determination  of  the effect  of  the NASD  Code            section  15  time  bar.5     We  move  on  to   consider  the            arbitration clause  itself (and the NASD  Code of Arbitration            Procedure  incorporated therein)  to determine,  in light  of            federal arbitration  law, whether  the parties  intended that            the arbitrator or the court apply the time bar.            B.  Interpreting Section 15            ___________________________                                            ____________________            5.  This  conclusion  is  not inconsistent  with  Volt  Info.                                                              ___________            Sciences, Inc. v.  Board of Trustees of  Leland Stanford, Jr.            ______________     __________________________________________            Univ.,  489  U.S. 468  (1995).   In  Volt, the  Supreme Court            _____                                ____            deferred  to  the  California  court's  finding  under  state            contract law  that the parties had  intended their choice-of-            law clause  to adopt  California rules governing  arbitration            procedures.   Id. at  476.  Here,  we must  determine de novo                          ___                                     __ ____            what the parties intended  by their choice-of-law clause, and            we follow Mastrobuono.   See Mastrobuono, 115 S. Ct.  at 1217                      ___________    ___ ___________            n.4.                                         -11-                                          11                      A cardinal principle of federal  arbitration law is            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 Am.,  475  U.S.  643, 648  (1986)            _______________________________            (quoting United  Steelworkers v.  Warrior & Gulf  Navig. Co.,                     ____________________     __________________________            363  U.S. 574,  582 (1960)).6   Where  the parties  have made            clear what issues are  to be arbitrated, and what  issues are            excluded  from arbitration, it is easy to give effect to that            principle.  The difficulty comes where the existence or scope            of  the agreement to arbitrate is unclear; in that situation,                                            ____________________            6.  Earlier,  one   might  have  doubted   whether  appellate            decisions   concerning  labor  arbitration   would  apply  to            commercial arbitration.    Today, there  is little  question.            The  Supreme Court  relied heavily  upon a  labor arbitration            case in its recent decision in First Options of Chicago, Inc.                                           ______________________________            v. Kaplan, 115  S. Ct. 1920,  1923-25 (1995) (applying  labor               ______            arbitration  precedents,  particularly  AT&T,   to  determine                                                    ____            whether courts or  arbitrators decide  arbitrability under  a            commercial  arbitration  agreement).     We  believe  it   is            appropriate to  follow the  Supreme Court's lead  in applying            the particular  labor arbitration  cases cited herein  to the            particular issue  in this commercial arbitration  case.  See,                                                                     ___            e.g., McCarthy v.  Azure, 22  F.3d 351, 354  (1st Cir.  1994)            ____  ________     _____            (applying   labor   arbitration   precedents  in   commercial            arbitration case).   Cf. Finegold, Alexander  & Assocs., Inc.                                 ___ ____________________________________            v.  Setty &  Assocs., Ltd.,  81 F.3d  206, 207-08  (D.C. Cir.                ______________________            1996) (discussing application of labor arbitration precedents            in commercial  arbitration cases,  and stating "there  may no            longer  be much  of a  distinction between  the two  lines of            cases . .  . but  precision constrains us  to avoid  treating            them  interchangeably"); Raytheon Co. v. Automated Bus. Sys.,                                     ____________    ____________________            Inc.,  882 F.2d 6, 10-11 (1st Cir. 1989) (explaining that use            ____            of labor  arbitration precedents is inappropriate in deciding            whether  commercial arbitrators have  power to award punitive            damages, given  different considerations in  long-term labor-            management  relationships  and  short-term, often  "one-shot"            commercial relationships).                                         -12-                                          12            federal  arbitration  law  must  provide  default  rules  and            presumptions.                      Because a party will not be coerced to arbitrate an            issue unless he  has so  agreed, the Supreme  Court has  held            that:                      the question of arbitrability  -- whether                      a[n] .  . . agreement creates  a duty for                      the parties to  arbitrate the  particular                      grievance  --  is  undeniably a  judicial                      determination.      Unless  the   parties                      clearly    and    unmistakably    provide                      otherwise,  the  question of  whether the                      parties  agreed  to  arbitrate  is  to be                      decided by the court, not the arbitrator.                          Id. at 649,  followed in  First Options of  Chicago, Inc.  v.            ___          ___________  _______________________________            Kaplan, 115  S. Ct. 1920,  1923-25 (1995).  In  this case, if            ______            the   section   15  time   bar   is   determinative  of   the            "arbitrability" of  the Elahis'  claim, then, under  AT&T and                                                                 ____            First Options, the district court must construe and apply the            _____________            time bar,  unless we  find "clear and  unmistakable" evidence            that  the  parties  agreed  to  have  the  arbitrator  decide            arbitrability.                        But the presumption established  in AT&T and  First                                                          ____      _____            Options    --   that   courts,    not   arbitrators,   decide            _______            "arbitrability" unless the parties clearly intend otherwise -            -  is an  exception to the  "liberal federal  policy favoring            arbitration."   See Moses H. Cone,  460 U.S. at 24.  Pursuant                            ___ _____________            to that  policy, the Supreme  Court has  established a  broad            presumption  of arbitrability:  "any  doubts  concerning  the                                         -13-                                          13            scope of arbitrable  issues should  be resolved  in favor  of            arbitration, whether the problem  at hand is the construction            of the contract  language itself or an  allegation of waiver,            delay,  or a like defense  to arbitrability."   Id. at 24-25.                                                            ___            Accordingly,   if   the   time    bar   does   not    control            "arbitrability," the  issue of  the time  bar's applicability            would  be one for the  arbitrator under the broad arbitration            clause, absent  a  clear indication  to the  contrary in  the            parties' agreement.   See  Mastrobuono, 115  S.  Ct. at  1218                                  ___  ___________            ("[A]mbiguities  as to  the scope  of the  arbitration clause            itself [must be] resolved in favor of arbitration.") (quoting            Volt, 489 U.S.  at 476);  AT&T, 475 U.S.  at 650  (explaining            ____                      ____            established rule  that where  broad arbitration clause  is in            force,  presumption of arbitrability  exists unless "forceful            evidence"   indicates   intent    to   exclude   claim   from            arbitration).   In other  words, if an  "arbitrability" issue            arises, it  is  presumptively for  the court  to decide;  but            issues   other   than   "arbitrability"   are   presumptively            arbitrable, that is, for the arbitrator to decide.                      Because the  agreement  is not  unmistakably  clear            about whether the  court or  the arbitrator is  to apply  the            time bar, this case  hinges on which of the  two presumptions            we apply:   (1)  issues of "arbitrability"  are presumptively            for  the   court  to  decide,   or  (2)  issues   other  than            "arbitrability" are presumptively  for the arbitrator.   And,                                         -14-                                          14            which  presumption we apply hinges on whether the time bar is            an "arbitrability" issue, in the sense that the Supreme Court            used that term  in AT&T and First Options.   Thus, we venture                               ____     _____________            into a definitional maze to determine whether or not the NASD            time bar presents an issue of "arbitrability."                      1.  Does the  time bar  present an  "arbitrability"                      ___________________________________________________                      issue?                      ______                      The Supreme Court's  most recent discourse on  "who            decides arbitrability"  appears in First Options,  115 S. Ct.                                               _____________            at 1923-25.  In First Options,  the "arbitrability" issue was                            _____________            whether Kaplan  and his  wife were bound  to arbitrate  their            personal  liability  for  the  debts of  their  wholly  owned            investment corporation,  given that  they had  not personally            signed the arbitration agreement  that undisputedly bound the            corporation.   Thus, we can glean from First Options that the                                                   _____________            issue  of whether  a  person is  a  party to  an  arbitration            agreement is an "arbitrability" issue, and presumptively  for            the court to decide.                      In  AT&T,  the other  Supreme  Court  case on  "who                          ____            decides arbitrability," the "arbitrability" issue was whether            the subject  matter of  the underlying dispute  was expressly                _______________            made  non-arbitrable  by   the  terms   of  the   arbitration            agreement.     The  arbitration   clause  of  the  collective            bargaining agreement ("CBA") in  AT&T expressly did not cover                                             ____            disputes  "excluded from  arbitration by other  provisions of                                         -15-                                          15            this contract."   AT&T, 475  U.S. at 645.   The  CBA provided                              ____            further that the employer, AT&T, was free to exercise certain            management   functions,   including   the    termination   of            employment, "not subject to the provisions of the arbitration            clause."  Id.   Another CBA term provided that  layoffs would                      ___            occur  in reverse  order  of seniority,  defining layoffs  as            terminations  resulting from  "lack  of  work"; the  "layoff"            provision did  not  specify whether  it  was subject  to,  or            excepted  from, the arbitration clause.   Id.   The issue was                                                      ___            whether  the  union  could  compel  arbitration  over certain            layoffs, or, instead, whether the layoffs were non-arbitrable            management functions.  The Supreme  Court held that the issue            whether "layoffs" were an arbitrable subject matter was to be            decided by  the courts,  not the  arbitrator, given  that the            parties had expressly agreed that certain subjects, including            "termination  of employment,"  were not  arbitrable.   Id. at                                                                   ___            651.  Thus, we glean from AT&T  that the question whether the                                      ____            subject matter  of the underlying dispute is within the scope            of  an   expressly  limited   arbitration  agreement  is   an            "arbitrability" issue.                      In the  case at hand,  it is without  question that            PaineWebber  and the  Elahis  are parties  to an  arbitration            agreement  of broad  scope, and  that the  underlying dispute            over unsuitable  investments concerns a  subject matter  that            they  intended  to   arbitrate.    Nonetheless,   PaineWebber                                         -16-                                          16            contends  that  the NASD  section  15 time  bar  prevents the            arbitrator from  hearing any aspect of  this dispute, because            the  time bar  is a  "substantive eligibility  requirement."             The question before  us, then, is  whether the timeliness  of            submission goes to  the "arbitrability" of the  merits of the            underlying  dispute,  within  the  meaning of  that  term  as            suggested by AT&T and First Options.                         ____     _____________                      The    Supreme    Court    has     twice    defined            "arbitrability":  in  AT&T as  "whether the .  . .  agreement                                  ____            creates a duty  for the parties  to arbitrate the  particular            grievance," id. at 649; and in First Options as "whether they                        ___                _____________            agreed to arbitrate the merits" of the dispute, 115 S. Ct. at            1923.    It is  not immediately  obvious  how to  apply these            definitions  to determine  whether the  NASD time  bar is  an            arbitrability issue.                      One could  say here that "arbitrability"  is not an            issue, because  the parties  clearly agreed to  arbitrate the            merits   of   disputes    about   investment    transactions.            Alternatively, one could say that the  parties only agreed to            arbitrate investment  disputes less  than six years  old,7 in                                            ____________________            7.  The  parties  apparently  agree  that the  NASD  Code  of            Arbitration  Procedure  was  incorporated  by  reference into            their agreement,  even though it was not known at the time of            execution that the NASD  would be the chosen arbitral  forum.            Cf.  PaineWebber Inc. v. Bybyk,  81 F.3d 1193,  1201 (2d Cir.            ___  _______________     _____            1996) (holding that NASD Code not incorporated into identical            client-broker   arbitration   agreement   because  NASD   not            identifiable as actual arbitral forum at time of execution of            the agreement).                                         -17-                                          17            which case the  time bar would  be an "arbitrability"  issue.            But  where does  that  logic  take  us?    Many  a  mandatory            procedural rule  could be  called an "arbitrability"  rule if            the failure  to comply  prevented arbitration of  the merits.            For example,  one might say  that, by incorporating  the NASD            rules, the  parties agreed  to arbitrate only  those disputes            for  which  the arbitrator's  fee  has  been paid;  questions            relating to  the fee could be  called "arbitrability" issues.            It would  be illogical, though,  to conclude that  the court,            not  the  arbitrator, must  determine if  the proper  fee was            paid.   Thus,  it  is not  immediately  clear how  we  should            determine,  at the margins at least,  what is and what is not            an  arbitrability   issue.    Seeking  more   light  on  what            "arbitrability" means and whether the  section 15 time bar is            an  "arbitrability" issue,  we  next examine  the rulings  of            other circuits on the  question whether courts or arbitrators            apply the section 15 time bar.                             a. Decisions of other circuits                           ______________________________                                i. Five circuits conclude the court must                                ________________________________________                                decide                                ______                      Five  circuits (the  Third, Sixth,  Seventh, Tenth,            and  Eleventh) have interpreted the time bar of section 15 to            be  a substantive eligibility  requirement that constitutes a            jurisdictional prerequisite to arbitration, and thus for  the                                         -18-                                          18            court  to  apply.8   See,  e.g., Cogswell  v.  Merrill Lynch,                                 ___   ____  ________      ______________            Pierce,  Fenner & Smith, Inc., 78 F.3d 474, 478-81 (10th Cir.            _____________________________            1996) (collecting and discussing cases from other  circuits);            Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cohen, 62 F.3d            ___________________________________________    _____            381, 383-84  (11th Cir.  1995); PaineWebber Inc.  v. Hoffman,                                            ________________     _______            984 F.2d 1372, 1378 (3d Cir. 1993);  Roney and Co. v. Kassab,                                                 _____________    ______            981 F.2d 894, 898-900 (6th Cir. 1992); Edward D. Jones &  Co.                                                   ______________________            v. Sorrells, 957 F.2d 509, 512-13 (7th Cir. 1992).                  ________                      In essence,  these  decisions rest  on an  asserted            "plain language"  interpretation of section 15:   because the            rule  provides  that  claims  over  six  years  old  are  not            "eligible  for  submission"  to arbitration,  these  circuits             ________       __________            conclude that  it limits the jurisdiction  of the arbitrator,            and consequently,  any question about the  application of the            rule to the  facts of a  particular case is  for the  courts.            Having characterized the time bar as an "arbitrability" issue            presumptively for  the courts  under AT&T and  First Options,                                                 ____      _____________            these circuits, examining agreements  substantially identical            to  the Elahis',  find  no clear  evidence  of an  intent  to            arbitrate the time-bar issue.                        In  our view,  the language  of section  15 is  not            plain and unambiguous.  Section 15  of the NASD Code does not                                            ____________________            8.  Some  of the  cited cases  involve an  identical time-bar            rule of the New York Stock Exchange, and we see  no reason to            distinguish  the cases.  Furthermore, none  of the cases turn            on  the minor variations  in the language  of the arbitration            clauses in the broker-client agreements.                                         -19-                                          19            speak  to  who decides  the  applicability of  the  time bar.                       ___            Section   15  does   not   plainly  create   a  question   of            "arbitrability,"  because it  does  not address  whether  the            basic  subject matter of the  dispute is within  the scope of            the arbitration clause.                      One could credibly view  section 15 as analogous to            a  statute   of  limitations   rather  than   a  "substantive            eligibility  requirement."    Courts  have  often  held  that            timeliness issues  are for the  arbitrator to decide,  so the            mere  fact  that  the  rule  creates   a  time-based  bar  to            successful  assertion of a claim does not by itself create an            "arbitrability"  issue for the court.  See Moses H. Cone, 460                                                   ___ _____________            U.S. at 24-25 (1983); Local 285, Serv. Employees Int'l  Union                                  _______________________________________            v. Nonotuck Resource Assocs., Inc.,  64 F.3d 735, 739-40 (1st               _______________________________            Cir. 1995); O'Neel v. National Ass'n of Secs.  Dealers, Inc.,                        ______    ______________________________________            667 F.2d 804, 807 (9th Cir. 1982).                      The Seventh Circuit's analysis  relied in part on a            1988 letter  written by an  NASD staff attorney  stating that            "the  NASD will not process a claim that falls wholly outside            the  six year period," finding the letter to be an indication            that section  15 is an  eligibility requirement that  must be            decided by the courts.   See PaineWebber Inc. v.  Farnam, 870                                     ___ ________________     ______            F.2d 1286,  1292 (7th Cir.  1989).  In our  view, reliance on            the NASD staff attorney's  letter is misplaced.  There  is no            assurance  that the  letter represented  the position  of the                                         -20-                                          20            NASD at the time.  More importantly, it does  not reflect the            current view of the  NASD.  Recently, the NASD  has concluded            that section  15 is silent  on whether courts  or arbitrators                                ______            decide if an action is time-barred.  The NASD has proposed an            amendment to  section 15  which would  provide that  the NASD            Director   of   Arbitration   would  make   the   eligibility            determination under the six-year time-bar rule.  59 Fed. Reg.            39,373,  39,373-74 (July  26, 1994),  quoted in  Cogswell, 78                                                  _________  ________            F.3d at  479.9  The NASD, explaining the amendment's purpose,            stated  that  "Section  15  does  not  specify  who  has  the            authority  to determine if a claim is eligible for submission            to arbitration."   Id.   The NASD's 1994  statement seriously                               ___            undermines  the  five-circuit  majority's   "plain  language"            rationale, as  well as any  reliance on the  staff attorney's            letter as an agency opinion entitled to some deference.                      In sum, we are not persuaded by the analysis of the            five-circuit majority.                                ii.  Four  circuits  say  the  arbitrator                                _________________________________________                                decides                                _______                                            ____________________            9.  The NASD withdrew the  proposed amendment in October 1994            based  on  concerns  expressed  in public  comments,  and  is            apparently still working "to develop a proposal acceptable to            all  parties concerned."   Letter  from Suzanne  E. Rothwell,            NASD  Associate  General Counsel,  to  Mark Barracca,  Branch            Chief, Division  of Market  Regulation of the  Securities and            Exchange  Commission  (Oct. 12,  1994).    In our  view,  the            withdrawal  of the  proposed  amendment does  not negate  the            significance of the NASD's statement in 1994 that  section 15            does  not specify who  decides the applicability  of the time            bar.                                          -21-                                          21                      Four  circuits  -- the  Second, Fifth,  Eighth, and            Ninth --  take the view  that the  section 15 time  bar is  a            matter for the arbitrator to decide.  While we agree with the            result  these  circuits  reach,  in our  view,  their  varied            analyses leave important questions unanswered.                        In Smith  Barney Shearson,  Inc. v. Boone,  47 F.3d                         _____________________________    _____            750,  753-54  (5th Cir.  1995),  the  Fifth  Circuit  drew  a            distinction between issues of "substantive arbitrability" and            "procedural  arbitrability."    Given the  broad  arbitration            clause  between  the parties  in Boone,  the court  held that                                             _____            section  15  raised timeliness  issues  that  "are issues  of            procedural  arbitrability   and  must   be  decided  by   the            arbitrator."10  Id. at 754.                            ___                                            ____________________            10.  The Fourth  Circuit, which has not  decided the question            presented  here,  appears  to   embrace  the  "substance  vs.            procedure"  approach of  the  Fifth Circuit.    In Miller  v.                                                               ______            Prudential Bache  Secs., Inc.,  884 F.2d 128,  132 (4th  Cir.            _____________________________            1989), cert. denied,  497 U.S. 1004  (1990), the court  found                   ____________            that  a clause  in a  broker-client agreement  providing that            "arbitration was to be conducted in accordance with the rules            of   the  arbitration   forum   governed   only   arbitration            procedure."   The precise holding in Miller, though, was that                                                 ______            although the  NASD's procedural  rules made the  NASD's anti-            fraud provisions inapplicable,  the NASD  arbitrator was  not            barred from applying the anti-fraud provisions of other stock            exchanges  to which Prudential-Bache  belonged.   That result            followed from  the court's finding that  the NASD arbitration            rules related  only to  arbitration "procedure," and  not the            "substantive  rules  that  may  bear  on  the merits  of  the            underlying  dispute."  Id.   It would appear  that the Fourth                                   ___            Circuit's  analytical  approach  (i.e., that  the  procedural                                              ____            rules  of  the  arbitral   forum  are  incorporated  into  an            arbitration agreement only  to govern arbitration  procedure)            would lead  to the same result with  respect to the NASD time            bar:    the NASD  Code  of  Arbitration Procedure,  including            section 15, is for the arbitrator to interpret and apply.                                         -22-                                          22                      The Eighth Circuit held that section 15 was for the            arbitrator to apply, but declined to address whether the NASD            time bar was procedural  or substantive.  FSC Secs.  Corp. v.                                                      ________________            Freel, 14 F.3d 1310, 1312 n.2 (8th Cir. 1994).   Instead, the            _____            court in Freel determined that  another provision of the NASD                     _____            Code  of Arbitration Procedure, section 35,  was a "clear and            unmistakable expression"  of the parties' intent  to have the            arbitrator decide  the applicability  of the section  15 time            bar.   Id.  at  1312-13.   Section  35 of  the  NASD Code  of                   ___            Arbitration  Procedure provides that "[t]he arbitrators shall            be empowered to interpret  and determine the applicability of            all provisions under this Code."  Id. at 1312.                                              ___                      Finally, and most recently, the Second Circuit held            that  the arbitrator  decides the  applicability of  the time            bar.  In  PaineWebber, Inc.  v. Bybyk, 81  F.3d. 1193,  1196,                      _________________     _____            1198-99 (2d  Cir. 1996),  the court assumed  without analysis            that  the section  15 time  bar presented  an "arbitrability"            question  in the sense  of AT&T and  First Options.   But the                                       ____      _____________            court also  found that the broad  arbitration agreement ("any            and all controversies which may arise concerning the account"            were to be arbitrated) was clear and unmistakable evidence of            the  parties'  intent   to  have  the  arbitrator   determine            arbitrability.  Id. at 1199-200.   In reaching the conclusion                            ___            that  this intent  was  "clear and  unmistakable," the  court            said,  somewhat  paradoxically, that  it  would construe  any                                         -23-                                          23            ambiguities against  the drafter, PaineWebber.   Id. at 1199.                                                             ___            The Bybyk court went on to say that it did not need to decide                _____            whether the  time bar was substantive  or procedural, because            it  determined  that  the  NASD rules  were  not  effectively            incorporated into the parties' agreement.  Id. at 1201.  But,                                                       ___            the court further stated, even if the NASD rules and the time            bar had  been incorporated, Section 35  (discussed above with            the Eighth Circuit's Freel decision) clearly "commit[ted] all                                 _____            issues, including issues of arbitrability and  timeliness, to            the arbitrators."   Id. at  1202.  Thus,  the Second  Circuit                                ___            relied on several  alternative grounds to find that  the time            bar should be applied by the arbitrator.                      The Ninth  Circuit has  held that "the  validity of            time-barred defenses to enforcement of arbitration agreements            should generally be determined  by the arbitrator rather than            the  court.  O'Neel v. National Ass'n of Secs. Dealers, Inc.,                         ______    _____________________________________            667 F.2d  804, 807 (9th Cir. 1982).  But the O'Neel court was                                                         ______            applying a previous NASD  five-year time limit for submission            to arbitration, not the present section 15.  Moreover, O'Neel                                                                   ______            contains no  analysis  of the  issue,  as the  Ninth  Circuit            simply adopted an earlier Second Circuit case, Conticommodity                                                           ______________            Services v. Phillip &  Lion, 613 F.2d 1222, 1224-26  (2d Cir.            ________    _______________            1980),  which  has  since   been  supplanted  by  the  Second            Circuit's more  recent analysis in  Bybyk, 81  F.3d at  1193.                                                _____            Nonetheless,  it appears that O'Neel is still good law in the                                          ______                                         -24-                                          24            Ninth Circuit, and we believe the same result would obtain in            that circuit with respect to section 15.                           b. Our analysis                           _______________                      In our view, we  must determine whether the parties            intended the time bar to be an "arbitrability" issue, i.e., a            ________                                              ____            threshold  issue that must be decided by a court before there            can be any arbitration.  After all, the intent of the parties            always controls what is  to be arbitrated.  AT&T, 475 U.S. at                                                        ____            648.    Given  the  existence  here  of  a  valid  and  broad            arbitration  clause  covering "all  controversies" concerning            investment transactions "or the construction,  performance or            breach  of this  or  any other  agreement,"  did the  parties            intend  that  the time  bar  of section  15  should determine            ______            "arbitrability"  as  that term  is  used  in AT&T  and  First                                                         ____       _____            Options?            _______                      If the  parties  clearly intend  that a  particular            issue must be resolved by the courts before there is any duty            to submit to arbitration,  then the courts must respect  that            intent by deciding the issue.  See AT&T, 475 U.S. at 648.  On                                           ___ ____            the other hand, if it is ambiguous whether the parties intend            a  given issue to be an "arbitrability" issue, we must make a            sensible presumption about their intent.                      Thus, if the parties have  (1) entered into a valid            arbitration     agreement    (satisfying     First    Options                                                         ________________            "arbitrability"),  and (2)  the arbitration  agreement covers                                         -25-                                          25            the  subject matter  of the  underlying dispute  between them            (satisfying AT&T "arbitrability"), then we will  presume that                        ____            the  parties have  made a  commitment to  have an  arbitrator            decide all the remaining issues necessary to reach a decision            on the merits of  the dispute.  Put differently,  the signing            of a valid agreement  to arbitrate the merits of  the subject            matter in dispute presumptively pushes the parties across the            "arbitrability" threshold; we  will then  presume that  other            issues  relating  to  the substance  of  the  dispute  or the            procedures of arbitration are for the  arbitrator.  Cf. Moses                                                                ___ _____            H. Cone,  460 U.S. at 24-25.  But, if the parties clearly and            _______            unmistakably provide that an issue is one of "arbitrability"            -- i.e.,  that the issue is  a threshold matter  that must be               ____            determined before  any adjudicative power will  be granted to            the  arbitrator --  then  the court  must respect  that clear            expression of intent and  decide that threshold issue, rather            than compelling arbitration.                      This presumption  about whether  an  issue goes  to            "arbitrability" is  consistent with  both the federal  policy            favoring arbitration and common sense about the likely intent            of parties who have agreed to arbitrate the subject matter of            the  underlying dispute.   We believe  that parties  who have            agreed to  arbitrate a given  subject most likely  intend and            expect  that the  arbitrator should  resolve all  issues that                                         -26-                                          26            arise  concerning that subject; if they do not, we think they            would clearly express their contrary intent.                      The  presumption  that  we  now  adopt  (i.e., that                                                               ____            issues  other  than  (1)  the  existence  of  an  arbitration            agreement  between the  parties and  (2) whether  the subject            matter of the underlying  dispute is within the scope  of the            arbitration  clause  are  presumptively  not  "arbitrability"            issues) must not be confused with -- and in no way diminishes            -- the  presumption, established  in AT&T and  First Options,                                                 ____      _____________            that issues of  arbitrability are normally  to be decided  by            courts, not arbitrators.  The presumption that we adopt today            is  about whether  an issue  is one  of "arbitrability";  the                      _______            AT&T/First Options  presumption is  about who  decides issues            ____ _____________                        ____________            that have been classified as "arbitrability" issues.                      The Court explained  in First Options that  parties                                              _____________            are  unlikely to have focused  on the question  of who should            decide arbitrability, and therefore the courts should presume            that they did not intend to submit arbitrability issues to an            arbitrator.  115 S.  Ct. at 1924-25.   This is obvious  where            the "arbitrability" question is whether there is an agreement            at all (as in  First Options); certainly a party  who did not                           _____________            sign  the  agreement  did  not  consider  who  should  decide            arbitrability.   This presumption  (that arbitrability issues            are for the courts) also makes sense where the subject matter            of the dispute may be outside the scope of an otherwise valid                                         -27-                                          27            agreement  (as in AT&T); in  such a case,  the parties likely                              ____            believed  that it was  enough to exclude  certain issues from            the arbitration clause, and probably  did not think about the            arbitrator's power to decide  whether a particular close case            was excluded or not.                      On the  other hand, where the  parties have clearly            agreed  to arbitrate  the subject  of the  underlying dispute            between them, as the  parties have here, it is  unlikely that            they intended  other issues related  to the dispute,  such as            the  timeliness of the submission of the claim, to affect the            "arbitrability"  of   the  dispute.     Such  an   intent  is            particularly  unlikely  where  the arbitration  clause  is as            broad  as it  is in  this case.   Thus,  we presume  that the            parties here did not intend to make the section 15 time bar a            threshold "arbitrability" question  to be  determined by  the            courts rather than an arbitrator.                                         -28-                                          28                      2. Did the parties clearly and unmistakably express                      ___________________________________________________                      an   intent  to   make   the  NASD   time  bar   an                      ___________________________________________________                      "arbitrability" issue?                      ______________________                        Although  we presume  that the  time bar  was not            intended  to be an arbitrability issue, we do not stop there;            we must look closely at the agreement between PaineWebber and            the Elahis for  any clear and  unmistakable expression of  an            intent  contrary  to that  presumption.    We apply  "general            state-law  principles  of   contract  interpretation"  to  an            arbitration agreement,  but with "due regard"  to the federal            policy favoring arbitration.   Volt, 489 U.S. at  475-76; see                                           ____                       ___            also First Options, 115  S. Ct. at 1924; Mastrobuono,  115 S.            ____ _____________                       ___________            Ct. at 1219 & n.9.  As the parties have directed, we look  to            New  York contract  law.   "[T]he  court  must ascertain  the            intent  of the parties from the plain meaning of the language            employed,"  and a "contract should be construed so as to give            full  meaning and effect  to all  its provisions."   American                                                                 ________            Express Bank  Ltd. v. Uniroyal,  Inc., 562 N.Y.S.2d  613, 614            __________________    _______________            (N.Y. App. Div. 1990),  leave to appeal denied,  569 N.Y.S.2d                                    ______________________            611 (1991).    A contract term is ambiguous if it is "capable            of  more  than  one  meaning when  viewed  objectively  by  a            reasonably intelligent person who has examined the context of            the entire integrated  agreement and who is  cognizant of the            customs,  practices,  usages,  and terminology  as  generally            understood  in the  particular trade  or business."   Walk-In                                                                  _______                                         -29-                                          29            Med. Ctrs., Inc. v.  Breuer Capital Corp., 818 F.2d  260, 263            ________________     ____________________            (2d Cir. 1987) (applying New York law).                      Our analysis of the  agreement reveals no clear and            unmistakable  expression of  intent  that the  NASD time  bar            should be  an arbitrability  issue, nor  that the  time bar's            applicability should not be arbitrated.  The agreement simply            says that "arbitration  shall be in accordance with the rules            in effect of  . .  . [the NASD]."11   PaineWebber's  argument            that  the time bar is  an arbitrability issue  centers on the            "eligible  for  submission"  language  of  section  15   ("No            dispute,  claim,  or   controversy  shall  be   eligible  for                                                            _____________            submission to arbitration under this Code where six (6) years            __________            have  elapsed  .  . .  .").    PaineWebber  asserts that  the            arbitrator  is  only empowered  to  act  on claims  that  are            "eligible  for submission" to the NASD,  thus someone else --            the  court --  must  decide  if  a  claim  is  "eligible  for            submission."                                            ____________________            11.  The notion of the Elahis having an intent with regard to            section 15 is somewhat artificial -- it seems unlikely that a            small, private investor would  have any specific knowledge of            the  NASD arbitration  rules.   But the  parties here  do not            dispute  that the  NASD rules  were effectively  incorporated            into their  agreement, nor  is  there any  argument that  the            agreement was an unconscionable  contract of adhesion.  Thus,            by incorporation, the  parties have committed to  be bound by            section 15, whether  or not  they even knew  it existed,  let            alone  understood what it meant.   See Level  Export Corp. v.                                               ___ ___________________            Wolz, Aiken & Co.,  111 N.E.2d 218, 221 (N.Y.  1953) (one who            _________________            accepts a contract is deemed to know its contents).                                         -30-                                          30                      As we concluded earlier  in our analysis of whether            the time bar presented an arbitrability  issue, PaineWebber's            view  is  plausible,  but  it   is  not  the  only  plausible            interpretation of this  phrase.  "Submission  to arbitration"            could mean  submission for  full adjudication of  the merits,            rather than  submission for preliminary  determinations, such            as  whether   the  claim  is  time-barred,   or  whether  the            appropriate fee was paid, or whether the  claim was submitted            on the proper forms.  The NASD itself  recently stated, as we            have noted, that  "Section 15  does not specify  who has  the            authority  to determine if a claim is eligible for submission            to arbitration."   59 Fed. Reg. 39,373,  39,373-74, quoted in                                                                _________            Cogswell, 78 F.3d at 479-80.   Thus, we conclude, as  did the            ________            NASD itself,  that the "eligible for  submission" language in            section  15 is  not  a clear  expression  of intent  to  make            timeliness an arbitrability issue.                      A  number  of  other  considerations   support  our            conclusion  that section 15 was not clearly intended to be an            arbitrability  issue  for judicial  determination.12   First,                                            ____________________            12.  We  choose not to rely on another line of precedent that            would justify our  decision.  In John  Wiley & Sons, Inc.  v.                                             ________________________            Livingston, 376  U.S. 543,  555-59 (1964), the  Supreme Court            __________            held  that the  effect  of a  four-week  time limit  for  the            submission of grievances was a matter for the arbitrator, not            the court.  The  CBA in Wiley provided that "[t]he failure by                                    _____            either  party   to  file  the  grievance   within  this  time            limitation  shall  be  construed  and  be  deemed  to  be  an            abandonment  of  the  grievance."   Id.  at  556  n.11.   The                                                ___            employer  argued that no duty to arbitrate had arisen because            of the union's  failure to timely file its grievance.  Id. at                                                                   ___                                         -31-                                          31            the  existence  of  NASD  Code  section  35,  empowering  the            arbitrator  to "interpret and  determine the applicability of            all  provisions  under  this  Code,"  strongly  undercuts any            argument that the parties intended the section 15 time bar to            be an arbitrability issue  to be decided only by  the courts.            See Bybyk, 81 F.3d at 1202; Freel, 14 F.3d at 1312.            ___ _____                   _____                      Second, the section 15 time bar is part of the NASD            Code  of Arbitration Procedure,  thus one would  assume it is            intended to be applied by the NASD itself  to control its own                                            ____________________            556.  The Court  explained that "[o]nce it is  determined, as            we  have, that the parties are obligated to submit the matter            of  a dispute  to arbitration,  'procedural' questions  which            grow out of  the dispute  and bear on  its final  disposition            should be left to the arbitrator."  Id. at 557.                                                ___                      Recently,  we followed  Wiley in  Local  285, Serv.                                              _____     _________________            Employees Int'l  Union v. Nonotuck Resource  Assocs. Inc., 64            ______________________    _______________________________            F.3d  735, 739-40  (1st  Cir.  1995).  The  CBA  in  Nonotuck                                                                 ________            required grievances  to be  presented within fifteen  days of            the occurrence, and provided that "[t]he time limits provided            in  this article are conditions precedent  for the filing and            processing  of grievances under  this Article."   Id. at 739.                                                              ___            The employer argued that late-filed grievances were expressly            excluded from arbitration,  and that under AT&T,  450 U.S. at                                                       ____            650,  the arbitrability of the grievance was a matter for the            court, not the arbitrator.  Nonotuck,  64 F.3d at 739-40.  We                                        ________            rejected   that  argument,   explaining  that   the  employer            "misapprehend[ed]  the  distinction  between substantive  and            procedural arbitrability."   Id.   We stated  that "the  fact                                         ___            that something  is a condition precedent  to arbitration does            not  make it any less a procedural question" to be determined            by the arbitrator.  Id. (internal quotation marks omitted).                                ___                      The Wiley  and Nonotuck decisions  could be  neatly                          _____      ________            applied  to this appeal,  but we think  that simply labelling            timeliness   issues  as   "procedural,"  and  thus   for  the            arbitrator,  does  not  give   due  regard  to  the  parties'            contractual  intent.    If  the parties  expressly  intend  a            timeliness  issue  (or  other  procedural  issue)  to  be  an            "arbitrability" issue that the arbitrator cannot decide, then            we  must respect that contractual intent.  Thus, we think our            analysis better reflects the primacy of the parties' intent.                                         -32-                                          32            procedures, rather  than a rule that  is somehow "off-limits"            for arbitrators to apply.                      Third, the NASD rules only come into play after the            NASD has been  chosen as  the arbitral forum.   Although  the            other potential  forums specified in the parties' arbitration            clause  appear to have a nearly  identical six-year time bar,            they might,  in theory,  have very different  time-bar rules,            with different time  periods, or different language  (perhaps            phrased in  terms  of "eligibility  for submission,"  perhaps            not).  If  other forums did  have differently phrased  rules,            the question whether timeliness presented  an "arbitrability"            issue would depend on which  of the potential arbitral forums            was chosen.   If the parties  intended to make  a time bar  a            threshold  issue   for   judicial,  rather   than   arbitral,            determination,  it  seems  unlikely  that they  would  do  so            through such potentially unreliable means.                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      Because   the  parties  agreed  to  arbitrate  "all            controversies" concerning investment transactions, as well as            controversies concerning the  construction, performance,  and            breach  of the  arbitration agreement,  we presume  that they            intended  to arbitrate  the timeliness  of the  submission of            this dispute about investments.   Finding no clear expression            of  an intent contrary to  our presumption, we  hold that the                                         -33-                                          33            interpretation and  application of  the six-year time  bar of            section  15 is a matter for the arbitrator.  Accordingly, the            judgment  of  the  district  court is  affirmed.    Costs  to                                                   affirmed     Costs  to                                                   ________     _________            appellees.            appellees.            __________                                         -34-                                          34
