

                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  &amp;                                                                              
Stewart were on brief for appellant.               
Philip M.  Giordano with whom Giordano &amp; 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 &amp; Smith, Inc. v. Ohnuma,                                                                        

630 N.Y.S.2d 724, 725  (N.Y. App. Div. 1995);  Merrill Lynch,                                                                         

Pierce, Fenner &amp;  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&amp;T Technologies,  Inc.  v.                                                                     

Communications  Workers  of Am.,  475  U.S.  643, 648  (1986)                                           

(quoting United  Steelworkers v.  Warrior &amp; 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&amp;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  &amp; Assocs., Inc.                                                                         
v.  Setty &amp;  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&amp;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&amp;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&amp;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&amp;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&amp;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&amp;T expressly did not cover                                                 

disputes  "excluded from  arbitration by other  provisions of

                             -15-                                          15

this contract."   AT&amp;T, 475  U.S. at 645.   The  CBA provided                                  

further that the employer, AT&amp;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&amp;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&amp;T and First Options.                                               

          The    Supreme    Court    has     twice    defined

"arbitrability":  in  AT&amp;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 &amp; Smith, Inc., 78 F.3d 474, 478-81 (10th Cir.                                         

1996) (collecting and discussing cases from other  circuits);

Merrill Lynch, Pierce, Fenner &amp; 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 &amp;  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&amp;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&amp;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 &amp;  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&amp;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&amp;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&amp;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&amp;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&amp;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&amp;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&amp;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 &amp; 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 &amp; 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 &amp; 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                                                                      

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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&amp;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

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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.                      

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