Bayer Cropscience AG v Dow Agrosciences LLC, (E.D. Va. July 13, 2012) involved a patent licence dispute between Bayer Cropscience AG (Bayer), a German company, and Dow Agrosciences LLC (Dow), a US company. Bayer filed a complaint in court, alleging that Dow violated a Licence Agreement authorising Dow to use some of Bayer's patents. The Licence Agreement included an arbitration clause providing for binding arbitration under the International Chamber of Commerce's (ICC) arbitration rules (ICC Rules). Based on this clause, Dow moved to dismiss Bayer's claims or, in the alternative, stay the court proceedings pending arbitration.

In court, the parties disputed whether the arbitrator or the court could decide questions of arbitrability. The district court explained that, in the Fourth Circuit, the general rule is that courts decide the question of arbitrability unless the parties "clearly and unmistakably" agree otherwise. The Fourth Circuit, unlike other circuits, has not decided whether incorporation of arbitral rules shows that the parties clearly intended to submit threshold issues to arbitration. The court did note that the majority of federal courts have held that incorporation of the American Association of Arbitration (AAA) Rules counts as "clear and unmistakable" intent to submit arbitrability questions to arbitration. Several circuits have held that incorporation of the ICC rules counts as well.

However, the court emphasised that the question of who decides threshold questions of arbitrability when an arbitration clause invokes the ICC rules is unsettled in the Fourth Circuit. Therefore, the court decided the threshold issue. Ultimately, the court determined that all claims were subject to arbitration and stayed the litigation pending arbitration.

This case illustrates the uncertainty over what constitutes "clear and unmistakable" intent to submit the threshold question of arbitrability to the arbitral panel.