The Court of Appeals reversed the decision by which the district court (UNITED STATES 1077), confirming a Swiss award, had held that it could not examine India’s defense that the dispute was not covered by the arbitration clause in the BIT on which the arbitration had been based, because the arbitral tribunal had already rejected that argument. The Court of Appeals explained that incorporation of the UNCITRAL Arbitration Rules in the arbitration clause – which was the case here – in principle supplies the “clear and unmistakable” language necessary to overcome the presumption that the parties intend courts, not arbitrators, to resolve questions about whether the arbitration agreement extends to the dispute at issue (“arbitrability”). However, a different conclusion may be reached depending on the context. In the present case, the arbitration clause was contained in a BIT drafted against the backdrop of German and Indian law, which both permit courts to review the arbitrators’ decision on the scope of the arbitration agreement.