Defendant-Appellee Century Indemnity Company (“Century”) is an insurance company that has entered into reinsurance agreements with a number of rein-surers, including Plaintiff-Appellant Employers Insurance Company of Wausau (“Wausau”). Two of the reinsurance agreements between Century and Wausau are at issue in this appeal. Century paid money to its insureds under certain rein-sured policies and maintains that its rein-surers, including Wausau, must reimburse it for those payments. Century demanded that its reinsurers participate in a consolidated arbitration to determine liability for the payments. Wausau acknowledges that its reinsurance agreements require it to arbitrate, but argues that it cannot be required to participate in a consolidated arbitration.
Wausau brought suit in federal district court, seeking declaratory judgment. Wausau urged the district court to find that it was entitled to two separate arbi-trations for the two reinsurance agreements it has with Century. Wausau also sought a declaration that it could not be required to participate in a consolidated arbitration with other reinsurers. The district court found for Century. It held that the question whether Century could be required to participate in a consolidated arbitration was a question for the arbitrator, not the court. The district court ordered Wausau to appoint an arbitrator in accordance with the terms of the Agreements and proceed to arbitration with Century. Wausau appeals. For the following reasons, we affirm.
I. Background
Wausau and Century are insurance companies. In this case, Century is the insurer and Wausau the reinsurer. Century has issued an insurance policy to Aqua-Chem, Inc. (“Aqua-Chem”). Century and Wausau entered into two reinsurance agreements pertaining to the Aqua-Chem policy, the First Excess Agreement and the Second. ■ Excess Agreement (“Agreements”). Each of the Agreements covers a different “layer” of the Aqua-Chem policy. 1 Aqua-Chem was subject to liability for asbestos bodily injury claims and presented the claims to Century for payment. Century paid the claims and billed its rein-surers for their alleged shares of Aqua-Chem’s claims. Several reinsurers, includ *575 ing Wausau, did not pay Century. Therefore, in October 2004, Century demanded that these reinsurers participate in a consolidated arbitration. Century also demanded that Wausau and the other rein-surers collectively name an arbitrator within 60 days of the demand; otherwise, Century would name an arbitrator for them.
Wausau acknowledges that it is required to arbitrate with Century. The First Excess Agreement and the Second Excess Agreement contain identical arbitration clauses. The arbitration clauses state, in relevant part:
ARBITRATION
As a condition precedent to any right of action hereunder, any dispute arising out of this Agreement shall be submitted to the decision of a board of arbitration composed of two arbitrators and an umpire meeting in New York, New York, unless otherwise agreed.
The members of the board of arbitration shall be active or retired disinterested officials of insurance or reinsurance companies or Underwriters at Lloyd’s, London not under the control of either party to this Agreement. Each party shall appoint its arbitrator and the two arbitrators shall choose an umpire before instituting the hearing. If the respondent fails to appoint its arbitrator within 60 days after being requested to do so by the claimant, the latter shall also appoint the second arbitrator. If the two arbitrators fail to agree on the appointment of an umpire within 60 days' after their nomination, each of them shall name three of whom the other shall decline two, and the decision shall be made by drawing lots.
The Agreements do not contain any express provisions regarding consolidated arbitration.
While acknowledging that it must arbitrate, Wausau objected to participating in a consolidated ■ arbitration. Wausau argued that the First and Second Excess Agreements are separate contracts and contain no language expressing Wausau’s consent to participate in one arbitration involving both contracts or any arbitration involving other reinsurers.
Wausau filed suit in federal district court, seeking a declaration that 1) it was entitled to separate arbitration proceedings for the First and Second Excess Agreements and 2) these proceedings must be independent of any arbitration between Century and its other reinsurers. Allstate, another reinsurer, intervened in the case as a plaintiff. 2 Wausau and Allstate filed for summary judgment. Century filed a motion to dismiss and a cross-motion for summary judgment.
The district court granted in part and denied in part Wausau’s motion for summary judgment. It found that the arbitrator, not the court, should decide whether consolidation is permitted under the parties’ Agreements, based on
Green
Tree
Financial Corp. v. Bazzle,
Wausau appealed. It also filed a motion with the district court to stay its order, pending exhaustion of Wausau’s appeal. The district court denied the motion. Wausau then filed a motion for a stay with this Court, which was denied on October 20, 2005.
II. Discussion
In this case, both parties admit that the Agreements’ arbitration clauses are silent as to whether consolidated arbitration is permissible. The central question on appeal is who should decide whether the Agreements forbid consolidated arbitration: the district court, or the arbitrator? This Circuit and the Supreme Court have yet to resolve that exact question.
Wausau argues that the issue of whether consolidation is allowed is a question of “arbitrability” that must be addressed by the court, unless there is clear and unmistakable evidence that the parties intended the arbitrator to decide. Century argues the opposite, that the issue of consolidation is a procedural one that should be resolved by the arbitrator in the first instance, unless the parties’ arbitration agreement provides that the court must resolve it.
The Supreme Court has established a framework for analyzing the issue we are presented with. In
First Options of Chicago, Inc. v. Kaplan,
Wausau incorrectly characterizes the consolidation question as a question of ar-bitrability. Cases since
First Options
have helped clarify which questions qualify as “arbitrability” questions. In
Howsam v. Dean Witter Reynolds, Inc.,
Linguistically speaking, one might call any potentially dispositive gateway question a “question of arbitrability,” for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court’s case law, however, makes clear that, for purposes of applying the interpretive rule, the phrase “question of arbitrability” has a far more limited scope. The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.
Id.
at 83-84,
The
Howsam
Court provided two examples of “a gate-way dispute” that would raise a question of arbitrability and thus should be decided by a court: 1) a dispute regarding “whether the parties are bound by a given arbitration clause”; and 2) “a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.”
Id.
at 84,
We find based on Howsam that the question of whether an arbitration agreement forbids consolidated arbitration is a procedural one, which the arbitrator should resolve. It does not involve whether Wausau and Century are bound by an arbitration clause or whether the arbitration clause covers the Aqua-Chem policies. Instead, the consolidation question concerns grievance procedures — i.e., whether Century can be required to participate in one arbitration covering both the Agreements, or in an arbitration with other reinsurers.
Our holding is consistent with the decisions of our sister circuits in similar cases. For instance, in
Shaw’s Supermarkets, Inc. v. United Food and Commercial Workers Union, Local 791,
Similarly, in
Dockser v. Schwartzberg,
We agree with the approach of the First and Fourth Circuits. Using the same analysis, we find that consolidation is a procedural issue. Wausau and Century agree that their underlying dispute regarding the Aqua-Chem claims is subject to arbitration. Thus, the only question is the kind of arbitration proceeding their Agreements allow. This comes down to a matter of contract interpretation, which the arbitrator is well qualified to address.
See We Care Hair Dev., Inc. v. Engen,
Although we reach our decision based on
Howsam,
we recognize that the district court based its decision on
Green Tree Financial Corp. v. Bazzle,
The question here — whether the contracts forbid class arbitration — does not fall into this narrow exception. It concerns neither the validity of the arbitration clause nor its applicability to the underlying dispute between the parties. Unlike First Options, the question is not whether the parties wanted a judge or an arbitrator to decide whether they agreed to arbitrate a matter. Rather the relevant question here is what kind of arbitration proceeding the parties agreed to. That question ... concerns contract interpretation and arbitration *579 procedures. Arbitrators are well situated to answer that question.
Id.
at 452-53,
Likewise, in this case the question of whether Wausau and Century’s Agreements forbid consolidated arbitration concerns the kind of arbitration proceeding the parties agreed to. Thus, the parties’ disagreement is not one over “arbitrability,” as that term has been described by the Supreme Court.
See Howsam,
We acknowledge, however, that there is debate regarding the precedential effect — if any — of the plurality opinion in
Ch'een Tree.
We are therefore hesitant to base our decision on it. When, as in
Green Tree,
“a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ”
Marks v. United States,
Identifying the narrowest holding in
Green Tree
requires us to consider the procedural history of that case. The case concerned contracts between Green Tree, a commercial lender, and its customers.
Green Tree,
filed two separate suits against the company in South Carolina state court, alleging violations of the South Carolina Consumer Protection Code.
Id.
at 447, 449,
Justice Breyer wrote the opinion of the Court, which Justices Scalia, Souter and Ginsburg joined. Justice Breyer determined that the arbitrator, rather than the court, should have decided whether the parties’ agreements forbid class arbitration.
Id.
at 451,
*580
Justice Stevens wrote a concurrence in
Green Tree
and provided the fifth vote for the plurality’s judgment. Justice Stevens found that the South Carolina Supreme Court properly “held as a matter of state law that class-action arbitrations are permissible if not prohibited by the applicable arbitration agreement, and that the agreement[s] between these parties is silent on the issue.”
Id.
at 454,
Arguably the interpretation of the parties’ agreement should have been made in the first instance by the arbitrator, rather than the court. See Howsam v. Dean Witter Reynolds, Inc.,537 U.S. 79 ,123 S.Ct. 588 ,154 L.Ed.2d 491 (2002). Because the decision to conduct a class-action arbitration was correct as a matter of law, and because petitioner has merely challenged the merits of that decision without claiming that it was made by the wrong decisionmaker, there is no need to remand the case to correct the possible error.
Green Tree,
Taking these two opinions together, we cannot identify a single rationale endorsed by a majority of the Court. Justice Breyer reasoned that 1) consolidation is a procedural question for- the arbitrator; 2) the Supreme Court should not reach the question whether the parties’ agreements forbid class arbitration; and 3) remand is required so that the arbitrators can address whether the agreements forbid class arbitration. Justice Stevens, in contrast, reasoned that 1) the South Carolina Supreme Court correctly held as a matter of state law that the parties’ agreements do not forbid class arbitration; and 2) remand was not required, because the parties did not argue that the arbitrator, rather than the court, should have decided the appropriateness of class arbitration. The Justices’ rationales do not overlap.
We are aware that the Fifth Circuit has reached a different conclusion regarding the precedential value of
Green Tree.
In
Pedcor Management Co., Inc. Welfare Benefit Plan v. Nations Personnel of Texas, Inc.,
The basis on which Justice Stevens would have decided the case — that the state court judgment was correct as a matter of law — fails to constitute the most narrow grounds on which the case was decided. The four-member plurality specifically rejected the legal interpretation of the state court because it was a decision by the wrong decision-maker. The grounds of the Stevens concurrence also differed from the three-member dissent which would have upheld the state court’s ability to make the decision .but would have reversed on the merits of that court’s decision to allow class arbitration. Justice Stevens did express his agreement, however, with the principle laid down by the plurality that arbitrators should be the first ones to interpret the parties’ agreement. As a result, the plurality’s governing *581 rationale in conjunction with Justice Stevens’s support of that rationale substantially guides our consideration of this dispute.
Pedcor,
We cannot conclude, as the Fifth Circuit did, that Justice Stevens agreed that the arbitrator should be the first to interpret the parties’ agreements to determine if they allow class arbitration. Justice Stevens’s only references to this point are that “arguably” the arbitrator should have interpreted the agreements first, and that remand was unnecessary to correct the “possible error” of having the court interpret the agreements first. Although it may be likely that Justice Stevens agreed with the plurality that an arbitrator should be the first to interpret the agreements, Justice Stevens argued that the Court should not have addressed the issue, since it was not raised by the parties. We choose not to identify the controlling rationale of Green Tree by presuming how Justice Stevens would have decided the issue if the parties had actually raised it.
Fortunately, in this case we need not rely on
Green Tree.
The Supreme Court made clear in
Howsam,
Wausau has not met its burden. The Agreements make no mention of consolida-
tion, as Wausau necessarily concedes. The arbitration clause in each Agreement states, in relevant part, that “any dispute arising out of this Agreement shall be submitted” to arbitration. This Court has found that the “any dispute arising out of’ language “does not address the question of who decides” — the court or the arbitrator.
Conn. Gen. Life Ins. Co. v. Sun Life Assurance Co.,
The final issue we must address is how the parties are to proceed with arbitration. The parties have different interpretations of the district court’s opinion: Century maintains that the opinion requires Wausau to appoint one arbitrator, for one arbitration covering both Agreements. Wausau maintains that the opinion requires it to appoint two arbitrators, one for each of two arbitrations (one under the First Excess Agreement, and one under the Second).
In the ordering clause of its opinion, the district court stated:
It is ... ordered that defendant proceed to arbitration with plaintiff Employer’s Insurance Company of Wausau in accordance with the terms of their agreements. Wausau shall appoint its arbitrator. Defendant shall appoint its arbitrator. Thereafter the two arbitrators shall choose an umpire in accordance with the terms of their agreements.
It is clear from this language that the district court intended to require Wausau to appoint one arbitrator and proceed to one arbitration, covering both Agreements.
Wausau argues that ordering it to arbitrate both Agreements in one arbitration would conflict with the terms of the arbitration clauses, for example by not allow *582 ing “each party to appoint its arbitrator.” We should not and will not consider this argument. The question before us is whether the parties’ Agreements specify who is to decide whether consolidated arbitration is allowed — the court or the arbitrator. We have determined that the Agreements do not specify and that questions regarding consolidation are presumptively for the arbitrator. Wausau is free to argue at the arbitration that separate arbitrations for the First Excess Agreement and Second Excess Agreement are required under the contracts’ terms. If the arbitration panel agrees, it can require the parties to proceed as it deems appropriate.
III. Conclusion
For the foregoing reasons, we Affirm the district court.
Notes
. A "layer” begins coverage at a certain level (the "attachment point” of coverage) and ends coverage at a certain level (the limit of coverage). For example, a $10 million insurance policy could be split into three different layers: the insurer could retain liability for the first $1 million in claims, enter a reinsurance agreement that attaches at the $1 million point and provides $4 million in coverage, and enter a second reinsurance agreement that attaches at the $5 million point and provides $5 million in coverage.
. Allstate did not appeal from the district court’s judgment and is not a party to this proceeding.