NASDAQ OMX Group, Inc. v. UBS Securities, LLC

Judge STRAUB dissents in a separate opinion.

On May 18, 2012, plaintiffs, the NASDAQ OMX Group, Inc. and the NASDAQ Stock Market LLC (collectively “NAS*1013DAQ”), conducted the initial public offering (“IPO”) for Facebook, Inc. The IPO was one of the largest in history, with 421 million shares of Facebook common stock offered at $88 per share, for a total value of over $16 billion. In conducting the offering, NASDAQ encountered and addressed various problems, prompting a number of subsequent actions, including disciplinary proceedings by the Securities and Exchange Commission (“SEC”), see Order Instituting Admin. & Cease-and-Desist Proceeding, SEC Release No. 34-69655, 2013 WL 2326683, at *2-3 (May 29, 2013) (“SEC Release No. 34-69655”), and SEC-approved changes to NASDAQ rules. Among the latter is a new rule subsection establishing a voluntary procedure for NASDAQ members injured in the Face-book IPO to seek compensation. See Order Granting Approval of a Proposed Rule Change To Amend Rule 4626 — Limitation of Liability, SEC Release No. 34-69216, 78 Fed.Reg. 19,040, 19,041 (Mar. 22, 2013) (“SEC Release No. 34-69216”). Defendant UBS Securities, LLC (“UBS”) chose not to pursue that avenue for relief, instead initiating an arbitration proceeding against NASDAQ seeking indemnification for injuries sustained in the Facebook IPO, as well as damages for breach of contract, breach of an implied duty of good faith and fair dealing, and gross negligence.

NASDAQ initiated this declaratory judgment action to preclude UBS from pursuing arbitration. UBS now appeals from a preliminary injunction to that effect, entered on June 28, 2013, in the United States District Court for the Southern District of New York (Robert W. Sweet, Judge). See NASDAQ OMX Grp., Inc. v. UBS Sec. LLC, 957 F.Supp.2d 388 (S.D.N.Y.2013). In seeking vacatur of the injunction, UBS contends that the district court erred in (1) exercising federal question jurisdiction in a case presenting only state law claims; (2) determining that the arbitrability of UBS’s claims is a question for decision by the court, rather than an arbitrator; and (3) concluding that UBS’s claims are not subject to arbitration. For the reasons set forth in this opinion, we identify no error in these rulings and, therefore, affirm the challenged preliminary injunction. Our colleague, Judge Straub, dissents from the ruling as to federal jurisdiction and, thus, does not reach the other two issues.

I. Background

A. The Facebook IPO

NASDAQ is a publicly-traded, self-regulatory organization (“SRO”) registered as a national securities exchange under Section 6 of the Securities Exchange Act of 1934 (“Exchange Act”). See 15 U.S.C. § 78f. It operates “one of the largest national securities exchanges,” executing “approximately 15% of U.S. equity securities transactions every day.” SEC Release No. 34-69655, 2013 WL 2326683, at *1. UBS is a registered broker-dealer and investment adviser, as well as a member of the NASDAQ exchange.

On May 18, 2012, NASDAQ was scheduled to conduct the highly-anticipated Facebook IPO. The initial Eastern Standard start time of 11:00 a.m. was delayed approximately one half hour, largely due to technical difficulties that NASDAQ encountered with the IPO “Cross,” the computerized system that typically launches IPO trading by matching buy and sell orders to determine the opening price. See id. at *2, *5-6. At 11:30:09 a.m., NASDAQ switched to a backup “failover” system that completed the IPO Cross, whereupon “[cjontinuous trading in Face-book shares then commenced on NASDAQ and other exchanges.” Id. at *7.

The delayed start in trading had certain adverse effects, two of particular relevance *1014here. First, over 30,000 orders entered between 11:11:00 a.m. and 11:30:09 a.m. were not included in the completed IPO Cross.. See id. at *10. These orders were dealt with in various ways, including some being cancelled by NASDAQ and others being released into the market at 1:50 p.m. See id. Second, certain trade confirmation messages for orders placed before 11:30:09 a.m. were not transmitted, as a result of which some “NASDAQ members ... were not able to determine whether their orders had been included in the cross and, therefore did not know what position they held in Facebook securities.” Id. at *8. Despite suggestions that it halt trading in the Facebook IPO, NASDAQ did not do so. See id. at *9.1

B. NASDAQ Rules

In conducting securities trading generally, including the Facebook IPO specifically, NASDAQ operated pursuant to certain internal rules mandated by federal law. Some background as to NASDAQ’s internal rules is helpful to our discussion of issues raised on this appeal.2

1. Exchange Act Mandates with Respect to Internal Rules

In order to register as an exchange, federal law requires an SRO such as NASDAQ to demonstrate to the SEC that its internal operating rules satisfy the requirements of the Exchange Act and all federal rules and regulations thereunder. See 15 U.S.C. § 78s(b)(2)(C). The Exchange Act specifically requires that a registered exchange’s rules be designed

to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.

Id. § 78f(b)(5) (emphasis added). The highlighted requirement is of particular significance to this case.

With certain exceptions not relevant here, an exchange must secure SEC approval for every proposed rule or rule change according to a detailed statutory procedure that provides for public notice and comment, possible hearings, and agency findings. See id. § 78s(b), 17 C.F.R. § 240.19b-4. The Exchange Act also pro- • vides for the SEC itself to “abrogate, add to, or delete from” an exchange’s rules in specified circumstances. See 15 U.S.C. § 78s(c).

The Act makes an exchange’s compliance with its own rules a requirement of federal law, see id. § 78s(g)(l), and rule violations can result in SEC revocation of an SRO’s registration, censure, or other sanctions, see id. § 78s(h)(l). The Act further requires an exchange to enforce its members’ compliance with the Exchange Act, SEC regulations, and the exchange’s internal rules. See id. § 78f(b)(l). Moreover, it precludes parties from contracting around, or otherwise waiving compliance *1015with, SEC-approved exchange rules. See id. § 78cc(a).

2. SEC Sanctions NASDAQ for Rules Violations in Connection with the Facebook IPO

The SEC conducted an investigation into NASDAQ’s handling of the Facebook IPO, which resulted in the agency sanctioning NASDAQ for violating the Exchange Act by not complying with its own SEC-approved rules. Notably, the SEC found NASDAQ not to have complied with NASDAQ Rule 4120(c)(7), which mandates that trading commence immediately after an IPO “display only period” and limits extension of the display period to specified circumstances found not to have been present in the Facebook IPO. See SEC Release No. 34-69655, 2013 WL 2326683, at *2, *14. The SEC also found NASDAQ not to have complied with its own Rule 4757(a)(1) by failing to adhere to its specified price/ time priority with respect to approximately 30,000 orders placed before completion of the Facebook IPO Cross. See id. at *2, *14-15 The SEC further identified an Exchange Act violation insofar as NASDAQ rules did not permit NASDAQ to assume an error position in its own account, an action that, in connection with the Face-book IPO, yielded NASDAQ a profit of approximately $10.8 million. See id. at *14.

To address these and other concerns, NASDAQ agreed, inter alia, to amend Rule 4120 and to make certain technical changes to its IPO Cross system. See id. at *15. The SEC endorsed these remedial proposals but, nevertheless, sanctioned NASDAQ by, inter alia, censuring the exchange, ordering it to cease and desist from violating the Exchange Act’s requirement that an exchange adhere to its own rules, and imposing a $10 million civil penalty. See id. at *17.

C. The Parties’ Services Agreement

NASDAQ and UBS are parties to a bilateral “Services Agreement,” several sections of which are relevant here.3

Section 12.B of the Services Agreement, entitled “Indemnification,” is the basis for UBS’s underlying claim for breach of contract and indemnification. It states as follows:

NASDAQ OMX shall be liable to, indemnify against, and hold Subscriber [i.e., UBS], its employees, directors, and other agents harmless from, any and all Claims or Lossés (as those terms are defined ... herein) imposed on, incurred by or asserted against [UBS], its employees, directors, and other agents to the extent that the Claims and Losses result ... ’ from acts or omissions of NASDAQ OMX, its employees, directors, agents or associated persons; or from the receipt or use of [UBS]’s Data (including representations about [UBS]’s Data) by NASDAQ OMX, its employees, directors, or agents

A. 136. The referenced “Claims or Losses” are defined in Section 12.G of the Services Agreement as follows:

any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, judgments, and reasonable costs and expenses of whatever nature, whether incurred by or issued against an indemnified Party, including without limitation: (i) indirect, special, punitive, consequential, or incidental loss or damage (including, but not limited to, trad*1016ing losses, loss of anticipated profits, loss by reason of shutdown in operation or increased expenses of operation, or other indirect loss or damage); and (ii) reasonable administrative costs, litigation costs, and auditors’ and attorneys’ fees, both in-house and outside counsel, and related disbursements.

A. 137.

UBS’s demand for arbitration derives from Section 18 of the Services Agreement, entitled “Arbitration,” which states in relevant part:

A. Except as may be provided in the NASDAQ OMX Requirements, all claims, disputes, controversies, and other matters in question between the Parties to this- Agreement and the Parties’ employees, directors, agents and associated persons arising out of, or relating to this Agreement, or to the breach hereof, shall be settled by final binding arbitration in accordance with this Agreement and the following procedure or such other procedures as may be mutually agreed upon by the Parties.

B. Except as otherwise provided herein or by agreement of the Parties, any arbitration proceeding shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association or in accordance with such other rules and procedures as are agreed to by the Parties.

D. The arbitration proceeding shall be held in the City of New York, unless otherwise agreed by the Parties. The decision rendered through arbitration shall be final and binding upon the Parties hereto and judgment may be entered in accordance with applicable law in any court having jurisdiction thereof.

A. 139. The “NASDAQ OMX Requirements,” referenced in the opening qualifying phrase of the Arbitration provision, are defined at the outset of the Services Agreement, in Section 1.A, as follows:

(i) the rules, regulations, interpretations, decisions, opinions, orders and other requirements of the Securities and Exchange Commission (“SEC”); (ii) the applicable rules, regulations, disciplinary decisions, and rule interpretations of self-regulatory organizations; (iii) NASDAQ OMX’s operating procedures, specifications, requirements, and other documentation that is regulatory or technical in nature (including, but not limited to, user guides) ...; (iv) all other applicable laws, statutes, rules, regulations, orders, decisions, interpretations, opinions, and other requirements, whether promulgated by the United States or any other applicable jurisdiction (including in the area of intellectual property); and (v) the successors, as they may exist at the time, of the components of the NASDAQ OMX Requirements.

A. 122-23.

Further noteworthy is Section 17 of the Services Agreement, which states that “[i]n the event of any conflict between the provisions of the [Services Agreement], the Attachments, or the NASDAQ OMX Requirements, the order of preference shall be the NASDAQ OMX Requirements, the Attachments, and the [Services Agreement].” A. 138.

D. Procedural History

1. UBS Demands Arbitration

On March 15, 2013, UBS filed a demand for arbitration against NASDAQ with the American Arbitration Association (“AAA”). See Demand for Arbitration and Statement of Claims (“Demand”), A. 46. The 18-page demand asserts that UBS’s dispute with NASDAQ originates in the exchange’s “catastrophic mismanagement” of the Facebook IPO. Demand ¶ 1, A. 46. *1017Specifically, UBS alleges that NASDAQ “was not up to the task” of handling such a large, high demand IPO: “[i]ts systems buckled under the strain,” and “proved incapable of completing the all-important ‘IPO Cross.’ ” Id. ¶ 3, A. 47. As a result, NASDAQ not only “was forced repeatedly to delay the open of trading in Facebook stock,” but also decided to “conceal[ ] from the market why it was doing so,” and that it was switching to a “risky and untested” alternative system, thereby preventing customers from evaluating how that system might affect their own. Id. ¶¶ 4-5, A. 47. Moreover, because the alternative system impaired NASDAQ’s ability to confirm executed trades, market participants were left “in the dark for more than two hours” as to the state of tens of thousands of trades, so that “[e]haos and mass confusion ensued throughout the market.” Id. ¶¶ 7, 28, 32-33, A. 47-48, 53.

Based on these allegations, UBS charges NASDAQ with “violating]” its “primary obligation to the investing public and to entities such as UBS”: “to operate a fair and orderly market.” Id. ¶37, A. 55. UBS asserts that how NASDAQ should have “responsibly” met this obligation was “by delaying or halting trading.” Id. ¶ 38, A. 55.

UBS also alleges that it was “grossly negligent” for NASDAQ to “depart[ ] from proven software” in conducting such a large IPO and to continue trading with “new and inadequately tested solutions,” without advising market participants of “what was happening or what actions it was taking so they could evaluate the potential consequences for themselves, then-systems and take appropriate action in response.” Id. 1136, A. 54-55.

As to its own injuries, UBS asserts that NASDAQ’s failure to provide prompt execution records prevented UBS’s own computers from confirming what orders had been executed, resulting in UBS’s placement of duplicate orders or its acceptance of cancellations for purchases that had, in fact, been made. See id. ¶¶ 44-48, A. 57. “As a result, UBS unintentionally amassed a net long position of approximately 40.2 million Facebook shares by the end of the trading day,” and ultimately incurred losses “in excess of $350 million.” Id. ¶¶ 8, 50, A. 48, 58.

UBS seeks to recover these losses from NASDAQ based on (1) the indemnification provision of the parties’ Services Agreement, (2) NASDAQ’s breach of contract in refusing UBS’s indemnification demand, (3) NASDAQ’s breach of the Services Agreement’s implied covenant of good faith and fair dealing in failing to declare certain UBS transactions clearly erroneous under NASDAQ Rule 11890, and (4) NASDAQ’s gross negligence in using insufficiently tested and inadequate systems to conduct the Facebook IPO. See id. ¶¶ 52-76, A. 58-62.

2. NASDAQ’s Declaratory Judgment Action

In lieu of an answer to UBS’s demand for arbitration, on April 4, 2013, NASDAQ filed this action in the Southern District of New York seeking declaratory and injunctive relief. On April 16, NASDAQ moved preliminarily to enjoin UBS from proceeding with arbitration. UBS promptly cross-moved to dismiss NASDAQ’s complaint and opposed the preliminary injunction motion.

On June 18, 2013, the district court granted NASDAQ’s motion for a preliminary injunction and denied UBS’s cross-motion to dismiss. See NASDAQ OMX Grp., Inc. v. UBS Sec. LLC, 957 F.Supp.2d at 407. UBS timely filed this appeal.

*1018II. Discussion

Title 28 U.S.C. § 1292(a)(1) affords appellate jurisdiction to review the grant of a preliminary injunction. Our standard of review is “abuse of discretion,” which we will identify only when the grant of equitable relief (1) “rests on an error of law or a clearly erroneous factual finding,” or (2) otherwise “cannot be located within the range of permissible decisions.” Evergreen Ass’n v. City of New York, 740 F.3d 233, 242 (2d Cir.2014) (internal quotation marks and citations omitted). UBS urges us to identify abuse of discretion here based on the district court’s purported legal errors in (1) exercising jurisdiction in a case raising only state law claims between nondiverse parties, (2) deciding the arbitrability of UBS’s claims itself rather than leaving that issue to an arbitrator, and (3) concluding that UBS’s claims are not arbitrable. We are not persuaded for reasons we discuss in turn.

A. Subject Matter Jurisdiction

1. Federal Jurisdiction Over State Law Claims

We review a district court’s challenged determination of subject matter jurisdiction de novo. See Cutrone v. Mortg. Elec. Registration Sys., Inc., 749 F.3d 137, 142 (2d Cir.2014). In doing so, we are mindful of the “ ‘fundamental precept that federal courts are courts of limited jurisdiction’ and lack the power to disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978)). Where, as here, there is no diversity of citizenship between the parties, we look to whether the case “aris[es] under the Constitution, laws, or treaties of the United States” to determine whether federal jurisdiction is properly exercised. 28 U.S.C. § 1331; see Fracasse v. People’s United Bank, 747 F.3d 141, -143-44 (2d Cir.2014).

“It is long settled law that a cause of action arises under federal law only when the plaintiffs well-pleaded complaint raises issues of federal law.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Nevertheless, in a declaratory judgment action such as this one, which seeks a ruling establishing plaintiffs nonliability on the defendant’s claim (for arbitration), “a complaint ... is to be tested, for purposes of the well-pleaded complaint rule, as if the party whose adverse action the declaratory judgment plaintiff apprehends had initiated a lawsuit against the declaratory judgment plaintiff.” Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 68 (2d Cir.2012) (internal quotation marks omitted). Under this “conceptual] realign[ment],” we analyze the parties’ claims “as they would appear in a coercive suit.” Id. at 67. Accordingly, here, we must look to UBS’s underlying demand for arbitration to determine the nature of the claims at issue.

UBS’s demand does not assert any claims created by federal law so as to admit federal jurisdiction most directly on the principle articulated by Justice Holmes in American Well Works Co. v. Layne & Bowler Co., that “[a] suit arises under the law that creates the cause of action.” 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916); see Gunn v. Minton, — U.S. -, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (noting that case “[m]ost directly ... arises under federal law when federal law creates the cause of action asserted,” a “rule of inclusion” that “accounts for the vast bulk of suits that arise under federal law” and “admits of only extremely rare exceptions”). Rather, UBS seeks to arbi*1019trate claims — for breach of contract, indemnification, breach of implied duties of good faith and fair dealing, and gross negligence — created by New York State law. This, however, does not necessarily preclude the exercise of federal jurisdiction.

As we have frequently observed, “[t]he artful-pleading doctrine, [a] corollary to the well-pleaded complaint rule, prevents a plaintiff from avoiding [federal jurisdiction] by framing in terms of state law a complaint the real nature of [which] is federal, ... or by omitting to plead necessary federal questions in a complaint.” Marcus v. AT&T Corp., 138 F.3d 46, 55 (2d Cir.1998) (internal quotation marks omitted); accord Romano v. Kazacos, 609 F.3d 512, 518-19 (2d Cir.2010). Moreover, even in the absence of artful pleading, federal jurisdiction may properly be exercised over a “special and small” category of actual state claims that present significant, disputed issues of federal law. Gunn v. Minton, 133 S.Ct. at 1064. At issue in this case is whether UBS’s state law claims fall within this special and small category so as to admit federal -question jurisdiction.

The category, which dates back “nearly 100 years” in Supreme Court precedent, is rooted in “the commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of .federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) (citing Hopkins v. Walker, 244 U.S. 486, 490-91, 37 S.Ct. 711, 61 L.Ed. 1270 (1917), and “classic example” of Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 201, 41 S.Ct. 243, 65 L.Ed. 577 (1921)). Still, the Supreme Court has been sparing in recognizing state law claims fitting this criterion. See R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and The Federal System {“Hart & Wechsler”) 799 (6th ed.2009) (observing that Court has explicitly upheld federal jurisdiction in absence of federal cause of action only four times, citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. at 314-16, 125 S.Ct. 2363, and City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 164, 118 S.Ct. 523,139 L.Ed.2d 525 (1997), in addition to Smith and Hopkins). Indeed, delineating the parameters of federal jurisdiction in such circumstances has presented a constant challenge. See Gunn v. Minton, 133 S.Ct. at 1065 (describing Supreme Court’s efforts to bring order to “this unruly doctrine”); Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 809-10, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) (referencing “ ‘litigation-provoking problem’ ” created by “presence of a federal issue in a state-created cause of action” (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 470, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) (Frankfurter, J., dissenting))). This, in turn, has engendered persistent skepticism as to the value of the endeavor. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. at 320, 125 S.Ct. 2363 (Thomas, J., concurring) (signaling openness to reconsideration of whether federal question jurisdiction should be limited to cases in which federal law creates cause of action because “[j]urisdictional rules should be clear” and “[wjhatever the virtues of the Smith standard, it is anything but clear”); Smith v. Kansas City Title & Trust Co., 255 U.S. at 214, 41 S.Ct. 243 (Holmes, J., dissenting) (“[I]t seems to me that a suit cannot be said to arise under any other law than that which creates the cause of action.”); see also Hart and Wechsler 799-800 (observ*1020ing that “Justice Holmes’ cause of action test is simpler and clearer — and while excluding cases like Smith or Grable, it avoids the need in a much larger number of cases to engage in what can be a refined and uncertain analysis”).

This background properly signals caution in identifying the narrow category of state claims over which federal jurisdiction may be exercised. It does not, however, absolve federal courts of the duty to exercise jurisdiction when they identify state claims falling within that limited sphere. To facilitate such identification, the Supreme Court has pronounced a determinative four-part test:

[FJederal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Where all four of these requirements are met ... jurisdiction is proper because there is a “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” which can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.

Gunn v. Minton, 133 S.Ct. at 1065 (quoting Grable & Sons Metal Prods., Inc. v. Dame Eng’g & Mfg., 545 U.S. at 313-14, 125 S.Ct. 2363); accord Fracasse v. People’s United Bank, 747 F.3d at 144.

Applying this Gunn-Grable test here, we conclude that the district court correctly exercised federal question jurisdiction in this case. Indeed, while that conclusion only requires us to identify federal question jurisdiction over one of UBS’s state law claims, see 28 U.S.C. § 1367 (providing for supplemental jurisdiction over claims related to one giving rise to original jurisdiction); Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (stating that, if either of two causes of action comes within original jurisdiction of federal courts, removal was proper as to whole ease), for reasons discussed in the next section, we conclude that federal question jurisdiction applies to all four of UBS’s state claims.

2. Applying the Gunn-Grable Test to UBS’s Claims

a. The Presence of a Necessarily Raised and Actually Disputed Federal Issue

In determining whether UBS’s four state law claims against NASDAQ raise a federal issue, we begin by considering the duty underlying each claim. It is the violation of a duty that would trigger any contract right to indemnification, or support tort claims for negligence or a failure of good faith and fair dealing in the circumstances presented. See Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 177 (2d Cir.2013) (stating that, under New York law, negligence claim depends on “the existence of a duty on defendant’s part as to plaintiff’ (internal citation omitted)); Havana Cent. NY2 LLC v. Lunney’s Pub, Inc., 49 A.D.3d 70, 77, 852 N.Y.S.2d 32, 37 (1st Dep’t 2007) (observing that “if there is no contractual obligation to perform an act, the failure to perform the act cannot be a breach of the contract” (citing Restatement (Second) of Contracts § 235(b) (1981) (defining breach of contract as “non-performance of a duty when performance is due”))); Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 407-08 (2d Cir.2006) (recognizing that implied duty of good faith and fair dealing claim requires “an obligation that may be presumed to have been intended by the parties” to the underlying contract).

*1021UBS’s arbitration demand makes plain that a singular duty underlies all four of its state law claims: NASDAQ’s duty to operate a fair and orderly market. “An exchange is required to operate a fair and orderly market. This is its primary obligation to the investing public and to entities such as UBS. Nasdaq violated this obligation.” Demand ¶ 37, A. 55.

The duty UBS identifies — indeed, the very language it employs — derives directly from federal law. In the Exchange Act, Congress makes plain that “maintenance of fair and orderly markets” is the animating goal of federal securities law. 15 U.S.C. § 78k-l(a)(l)(C). Toward this end, and as detailed in Part I.B.I., supra, the Exchange Act requires, as a specific condition of registration as a national exchange, that an SRO satisfactorily demonstrate to the SEC that its internal operating rules “remove impediments to and perfect the mechanism of a free and open market and a national market system.” Id. § 78f(b)(5).4 The Act further makes an exchange’s compliance with its SEC-approved rules a mandate of federal law, see id., § 78s(g)(l), and provides for violators to be sanctioned, see id., §§ 78u(d),(f), 78s(h)(l),(4). Thus, whether a registered securities exchange such as NASDAQ has violated its federally prescribed duty to operate a fair and orderly exchange necessarily raises a disputed question of federal law.

Moreover, that federal law question can only be answered by considering another: how NASDAQ’s duty to operate a fair and orderly market — a duty sourced in the Exchange Act, amplified by SEC regulations, and implemented through SEC — approved NASDAQ rules — applies in the context of an IPO generally, and particularly with respect to the Facebook IPO. Thus, even if, as our dissenting colleague Judge Straub observes, there is no dispute here as to the existence of a federal duty, see Dissenting Op., post at [1038], there is certainly a dispute as to the violation of that duty, particularly in causing UBS’s injuries. Resolution of that dispute will require construction of a federal statute, rules promulgated pursuant to the statute’s mandates, and the statute’s implementation by the SEC.5 In short, “it is the propriety of [NASDAQ’s] actions, as prescribed -under federal law, that is at the heart of [UBS’s] allegations.” D’Alessio v. N.Y. Stock Exch., Inc., 258 F.3d 93, 103 (2d Cir.2001).6

In reporting on its inquiry into NASDAQ’s compliance with the Exchange Act in conducting the Facebook IPO, the SEC stated that “[w]hen initiating an IPO, an exchange has an obligation to ensure that its systems, processes and contingency *1022planning are robust and adequate to manage the IPO without disruption to the market, and that it complies with all rules regarding, among other things, order price and time priority.” SEC Release No. 34-69655, 2013 WL 2326683, at *1. These are the very obligations that UBS charges NASDAQ with failing to meet in violating its duty to provide a fair and orderly market for the Facebook IPO. See supra Part I.D.l (discussing UBS Demand allegations). Thus, although UBS’s claims for relief may invoke state law of contract and tort, the duty on which these claims turn- and their particular scope as it pertains to UBS in participating in the Facebook IPO — necessarily raises disputed issues of federal securities law.

For example, in pursuing its claim for indemnification and breach of contract for failure to indemnify (collectively “indemnification claims”), UBS submits that the parties’ Services Agreement obligates NASDAQ to compensate UBS for losses sustained as a result of technical errors in conducting the Facebook IPO, including NASDAQ’s failure timely and accurately to fill and confirm orders. See Demand ¶¶ 58-59, 66, A. 59-60. But the Services Agreement does not itself specify how NASDAQ was to fill and confirm orders or otherwise conduct an IPO. Those obligations are delineated in NASDAQ’s own rules, notably, Rules 4120 (“Limit Up-Limit Down Plan and Trading Halts”) and 4753 (“Halt and Imbalance Cross”), which prescribe how NASDAQ was to conduct an IPO Cross, to fill orders, to provide disclosures, and to make decisions regarding initiating, halting, and resuming trading. The Services Agreement incorporates NASDAQ’s rules by reference, see Services Agreement § 17, A. 138, but NASDAQ’s duties to promulgate those rules and then to adhere to them were dictated by federal law, see 15 U.S.C. § 78s(b)(2) (mandating exchanges to promulgate rules “consistent with the requirements of the [Exchange Act]”), § 78s(g)(l) (requiring exchange compliance with own rules). Thus, UBS’s indemnification claims are reasonably understood to seek compensation for losses allegedly caused by NASDAQ’s violation of its federal law duties to operate fair and orderly markets and to adhere to its own SEC-approved internal rules ensuring such operation. As such, the claims necessarily raise disputed issues of federal law.7

The same conclusion obtains as to UBS’s claim for breach of the implied duty of good faith and fair dealing, insofar as NASDAQ failed to cancel certain UBS trades placed during the Facebook IPO. Although pleaded by reference to New York law, the claim is premised on NASDAQ Rule 11890. See Demand ¶¶ 68-73, A, 61-2 (repeatedly referencing Rule 11890).

*1023Rule 11890 authorizes NASDAQ to cancel any transaction deemed clearly erroneous. A party seeking cancellation must submit a written complaint within 30 minutes of the time at which the erroneous transaction was executed. See Rule 11890(a)(2)(A)(i). Alternatively, NASDAQ, in its discretion, may consider cancellation requests received up to 60 minutes after execution of an erroneous transaction. See Rule 11890(a)(2)(A)(iii).

UBS alleges that, on the day of the Facebook IPO, it provided NASDAQ with notice of certain erroneous transactions. To the extent its request for cancellation was untimely, UBS charges that it was NASDAQ’s own conduct that deprived it of the rule’s benefit, thereby breaching the duty of good faith and fair dealing implicit in the Services Agreement’s incorporation of Rule 11890: “By failing to inform UBS or the market of its system malfunctions in a timely manner, Nasdaq denied UBS the opportunity to provide notice of clearly erroneous trades in a manner consistent with Nasdaq Rule 11890, and thus denied it the benefit of that provision.” Demand ¶ 73, A. 61.

UBS’s good faith and fair dealing claim thus necessarily raises disputed questions as to NASDAQ’s obligations under Rule 11890, not only generally, but in the particular circumstances where NASDAQ has allegedly violated its Exchange Act duty to provide a fair and orderly market for securities trading. Thus, this claim also necessarily presents a disputed issue of federal law.

Finally, UBS charges NASDAQ with gross negligence insofar as it employed unprecedented, untested, and inadequate systems and procedures to conduct the Facebook IPO. See Demand ¶¶ 74-76, A. 62. As earlier noted, an essential element of a negligence claim is the existence of a duty owed by defendant to plaintiff. See Aegis Ins. Sens., Inc. v. 7 World Trade Co., L.P., 737 F.3d at 177. The source of the duty NASDAQ owed its members and the investing public in conducting an IPO is federal law. See DAlessio v. N.Y. Stock Exck, Inc., 258 F.3d at 103 (observing that source of exchange’s duty to monitor compliance with federal securities law and rules and regulations promulgated thereunder “is found in federal law, namely, in the Exchange Act” (emphasis in original)); SEC Release No. 34-69655, 2013 WL 2326683, at *1 (summarizing exchange’s obligations under federal law when initiating an IPO). Insofar as the parties dispute whether NASDAQ breached its duty to UBS in conducting the Facebook IPO, the negligence claim thus also necessarily raises disputed issues of federal law.8

In sum, UBS’s claims against NASDAQ necessarily raise multiple disputed issues of federal law, including the contours of NASDAQ’s federal duty to maintain a fair and orderly market, the scope of that duty, and whether the failure of NASDAQ’s systems during the Facebook IPO amounted to a breach of that duty. Accordingly, we deem this prong of the Gwm-Grable test satisfied and we turn to the next requirement: substantiality.

b. Substantiality

The exercise of federal jurisdiction over state law claims demands “not only a contested federal issue, but a substantial one.” Grable & Sons Metal Prods., Inc. v. *1024Dame Eng’g & Mfg., 545 U.S. at 813, 125 S.Ct. 2363. Substantiality ensures “a serious federal interest in claiming the advantages thought to be inherent in a federal forum.” Id. Consistent with this objective, “it is not enough that the federal issue be significant to the particular parties in the immediate suit”; Rather, “substantiality ... looks to the importance of the issue to the federal system as a whole.” Gunn v. Minton, 133 S.Ct. at 1066; accord Fracasse v. People’s United Bank, 747 F.3d at 144. We here conclude that the disputed federal issue in this case — whether NASDAQ violated its Exchange Act obligation to provide a fair and orderly market in conducting an IPO — is sufficiently significant to the development of a uniform body of federal securities regulation to satisfy the requirement of importance to “the federal system as a whole.”9

In reaching this conclusion, we begin with language in the Exchange Act stating Congress’s express finding that “[t]he securities markets are an important national asset which must be preserved and strengthened.” 15 U.S.C. § 78k-1(a)(1)(A). The central role stock exchanges play in the national system of securities markets is beyond question:

Stock exchanges perform an important function in the economic life of this country. They serve, first of all, as an indispensable mechanism through which corporate securities can be bought and sold. To corporate enterprise such a market mechanism is a fundamental element in facilitating the successful marshaling of large aggregations of funds that would otherwise be extremely difficult of access. To the public the exchanges are an investment channel which promises ready convertibility of stock holdings into cash. The impor- ' tance of these functions in dollar terms is vast____ Moreover, because trading on the exchanges, in addition to establishing the price level of listed securities, affects securities prices in general, and because such transactions are often regarded as an indicator of our national economic health, the significance of the exchanges in our economy cannot be measured only in terms of the dollar volume of trading.

Silver v. N.Y. Stock Exch., 373 U.S. 341, 349-50, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). The SEC recently reiterated this point: “National securities exchanges ... are critical components of the National Market System, which provides the foundation for investor confidence in the integrity and stability of the United States’ capital markets.” SEC Release No. 34-69655, 2013 WL 2326683, at *1. Thus, while exchanges are self-regulatory organizations, their self-regulation is not independent. Federal law imposes specific preconditions to, ongoing requirements *1025for, and oversight of, the operations of-registered exchanges in furtherance of the strong national interest in “preserving] and strengthening]” the operation of national securities markets. 15 U.S.C. § 78k-l(a)(l)(A).

Even if the importance of stock exchanges and securities markets to the national economy does not necessarily render every federal question pertaining thereto sufficiently substantial to satisfy this prong of Gmn-Grable analysis, it is noteworthy here that the SEC’s just-quoted statement was made, not generally, but in the specific context of assessing the very federal issue disputed in this case, namely, whether NASDAQ, in conducting one of the largest IPOs in the nation’s history, had complied with mandates of the Exchange Act, including mandates that it operate a fair and orderly market and adhere to its own SEC-approved rules. This strongly signals the substantial importance of these federal issues, not simply to the parties in this action, but to the development of uniform federal securities regulation, and thus to the “federal system as a whole.” Gunn v. Minton, 133 S.Ct. at 1066.10

UBS urges otherwise, citing Barbara v. New York Stock Exchange, Inc., 99 F.3d 49 (2d Cir.1996). In there holding that a disputed issue about an exchange’s compliance with an internal rule was not sufficiently substantial to support federal jurisdiction over state claims, this court observed that such rules are essentially “contractual in nature, and are thus interpreted pursuant to ordinary principles of contract law, an area in which the federal courts have no special expertise.” Id. at 54-55 (internal quotation marks omitted). UBS suggests, and Judge Straub appears to agree, see Dissenting Op., post at [1016-17], that this pronouncement categorically precludes identifying exchange rules disputes as “substantial” federal issues. This not only overreads Barbara, but also fails to heed Supreme Court precedent disavowing categorical assessments of federal jurisdiction over state law claims.

As to Barbara, we first note that this court there recognized that state law claims turning on an exchange’s compliance with its internal rules do raise disputed questions of federal law; it was at the next step of analysis that Barbara concluded that the particular federal questions raised in that case were insufficiently substantial, ie., important to the federal system as a whole, to support the exercise of federal jurisdiction. See 99 F.3d at 54.

Second, the source of Barbara’s, observation about the contractual nature of securities rules, Merrill Lynch, Pierce, Fenner & Smith Inc. v. Georgiadis, 903 F.2d 109, 112 (2d Cir.1990), is worth noting. In Merrill Lynch, this court had to decide which of two agreements controlled an arbitration dispute: the general arbitration provision in the American Stock Exchange’s SEC-approved constitution or the parties’ more specific customer agreement pertaining to arbitration. Viewing both *1026agreements as contractual, this court concluded that federal arbitration law, see 9 U.S.C. § 2, required that the more specific customer agreement control. This case presents us with no comparable separate agreement between the parties — much less one subject to a unique statutory mandate, such as federal arbitration law — that might afford UBS rights distinct from those reflected in NASDAQ’s SEC-approved rules for satisfying the fair-and-orderly market requirements of the Exchange Act.

Barbara made no mention of these circumstances in applying Merrill Lynch’s analogy of exchange rules to contracts even in the absence of a statutory conflict. Nor did it have occasion to consider or discuss the fact that, unlike most contracts between private parties, exchange rules are subject to SEC approval. This is hardly surprising given that the particular rules dispute at issue in Barbara was of trifling significance to the overall system of federal securities regulation, especially in comparison to the far more important question of whether NASDAQ breached its duty to maintain a fair and orderly market in the Facebook IPO — a point discussed further in the next paragraph.11 In fact, however, the ordinary principle of contract law that looks only to the intent of private contractors to construe their agreements, see Goldman v. White Plains Ctr. for Nursing Care, LLC, 11 N.Y.3d 173, 176, 867 N.Y.S.2d 27, 29, 896 N.E.2d 662 (2008), is not so simply applied to SEC — approved rules, particularly rules intended to effect the Exchange Act’s prescribed duty to provide fair and orderly markets — the point at issue here. While NASDAQ and UBS here incorporated NASDAQ rules into their own Services Agreement, federal law did not permit them to do otherwise or to agree on a different rule construction within the Services Agreement than that recognized by the SEC. See 15 U.S.C. § 78ec(a) (precluding parties from contracting around SEC-approved exchange rules); Services Agreement § 17, A. 138 (providing that NASDAQ OMX Requirements, which include all SEC-approved NASDAQ rules, shall have preference over any conflicting Agreement provisions). Thus, Exchange Act mandates for NASDAQ’s rules, the SEC’s particular role in approving NASDAQ’s rules, its authority itself to change those rules, its responsibility for overseeing NASDAQ’s compliance with the rules, and its power to discipline NASDAQ for rules violations — as it did with respect to the Facebook IPO here at issue — all indicate that NASDAQ rules are part of a more complex scheme (implicating greater federal interests) than that presented by most private party agreements, even those that borrow federal standards to resolve state law contract claims. See D’Alessio v. N.Y. Stock Exch., Inc., 258 F.3d at 104 (“The comprehensive scheme of statutes and regulations designed to police the securities industry is indicative of a strong federal interest.” (internal quotation marks omitted)). Accordingly, the contractual nature of Exchange *1027Act-mandated exchange rules does not, by itself, mean that all rule disputes raise insubstantial questions of federal law. Rather, substantiality depends on a careful assessment of how the rule dispute affects the federal system as a whole. See generally Fracasse v. People’s United Bank, 747 F.3d at 144-45 (concluding that disputed issue under Fair Labor Standards Act was insubstantial where plaintiffs referenced federal law for “public policy considerations” and not as basis for their claims).

This brings us to our third, and most important point in distinguishing this case from Barbara: the context of the rules disputes in these two cases. The dispute in Barbara pertained to an exchange’s action, allegedly in violation of the exchange’s rules, in provisionally barring a floor clerk from the trading floor while disciplinary proceedings were pending against him, and then in refusing to lift the ban even after all disciplinary charges against the clerk were dismissed. See Barbara v. N.Y. Stock Exch., Inc., 99 F.3d at 51-52.

Without belittling the importance of either the maintenance of discipline among marketplace personnel, or of an exchange’s adherence to its disciplinary rules, the parties’ dispute in Barbara did not implicate one of “the most fundamental functions of a national securities exchange.” SEC Release No. 34-69655, 2013 WL 2326683, at *1. In contrast, UBS’s claims here, whether sounding in contract or in tort, charge NASDAQ with violating the core duty of a federally registered SRO under the Exchange Act: to provide a fair and orderly market for a public stock offering. The SEC emphasized the importance of that duty to the overall system of federal securities regulation when it observed in connection with NASDAQ’s conduct of the Facebook IPO, “[t]he orderly initiation of secondary market trading after an IPO is one of the most fundamental functions of a national securities exchange, and affects not only the market for those individual companies but also investor confidence in the market as a whole.” SEC Release No. 34-69655, 2013 WL 2326683, at *1. Indeed, there can be no doubt as to that conclusion given that NASDAQ’s alleged failure to provide a fair and orderly market was in the context of one of the largest public stock of offerings in history — involving 421 million shares valued at $16 billion. In short, UBS does not charge NASDAQ with violating its Exchange Act duty to provide a fair and orderly market for a small or discrete number of securities transactions; rather it charges a massive failure of NASDAQ’s systems. Thus, the federal question raised by UBS’s claims as to NASDAQ’s performance of its critical, federally mandated duty cannot be deemed less than substantial.12

That conclusion is reinforced by the fact that the particular NASDAQ actions faulted by UBS — in starting and stopping trading, cancelling trades, and informing the public of its actions — implicate exchange *1028powers that have been deemed “quasi-governmental.” DL Capital Grp., LLC v. Nasdaq Stock Mkt., 409 F.3d 93, 98 (2d Cir.2005) (listing among such powers “Nasdaq’s regulatory decisions to suspend trading, resume trading, or cancel trades” and noting that even choice of when and how to announce those decisions was “consistent with Nasdaq’s quasi-governmental powers as an SRO” (emphasis in original)) (internal quotation marks and brackets omitted). To be sure, this does not equate this case to those presenting disputes as to the validity of actual governmental action. See Grable & Sons Metal Prods., Inc. v. Dane Eng’g & Mfg., 545 U.S. at 315-16, 125 S.Ct. 2363 (approving exercise of federal jurisdiction over state claims where validity of IRS action was central to dispute); Smith v. Kansas City Title & Tnst Co., 255 U.S. at 201, 41 S.Ct. 243 (identifying federal jurisdiction over state law claim that required decision on constitutional validity of federal bond issuance). Nevertheless, where, as here, UBS’s state law claims already present a substantial dispute of federal law insofar as they charge NASDAQ with violating its Exchange Act duty to provide a fair and orderly market for the Facebook IPO, the fact that UBS attributes that violation to NASDAQ’s malfeasance in performing quasi-governmental powers conferred on it by the Exchange Act reinforces our substantiality conclusion.

Further, characteristics that in some cases have signaled against substantiality — e.g., the retrospective nature of a claim, the propriety of resolving the federal dispute in a state forum, and the absence of a federal remedy — do not support that conclusion here. See Gunn v. Min-ton, 133 S.Ct. at 1066-67 (referencing retrospective nature of claim and state’s ability to resolve dispute at issue without threatening uniformity of federal law as factors that might signal lack of substantiality); Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. at 814, 106 S.Ct. 3229 (construing Congress’s decision not to provide federal remedy for violation of federal law as tantamount to conclusion that presence of claimed violation in state cause of action is insufficiently substantial to confer federal question jurisdiction). To the contrary, resolution of the disputed federal law issue here would likely have far-reaching prospective consequences for the operation of national securities exchanges, particularly in conducting IPOs. Further, as discussed in the next section addressing the federal-state balance prong of the Gunn-Grable test, see infra Part II.A.3, Congress has attempted to place disputes alleging violations of federal securities law obligations exclusively in a federal forum. Finally, since Merrell Dow Pharmaceuticals Inc. v. Thompson, the Supreme Court has clarified that the absence of a federal cause of action is a factor relevant to, but not dispositive of, the question of whether a federal law dispute raised by a state law claim can properly be deemed substantial. See Grable & Sons Metal Prods., Inc. v. Dane Eng’g & Mfg., 545 U.S. at 310, 318, 125 S.Ct. 2363.

In short, UBS cannot urge that Barbara or any other case establishes a categorical rule for assessing substantiality because the Supreme Court has ruled that the concept is not susceptible to bright-line analysis. Rather, substantiality must be determined based on a careful, case-by-case judgment. See id. at 317-18, 125 S.Ct. 2363; see also Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 117-18, 57 S.Ct. 96, 81 L.Ed. 70 (1936) (Cardozo, J.) (observing that substantiality assessment requires “something of that commonsense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of problems of causation”); accord Greenblatt v. Delta Plumb*1029ing & Heating Corp., 68 F.3d 561, 570 (2d Cir.1995) (referencing need for court to make “principled, pragmatic distinctions” in assessing substantiality (internal quotations omitted)).

Because the category of cases admitting federal jurisdiction over state law claims is “special and small,” Gunn v. Minton, 133 S.Ct. at 1064, it is to be expected that, after such careful, case-specific consideration, most federal law questions raised in connection with state law claims will not be deemed substantial, see id., at 1064-65; Greenblatt v. Delta Plumbing & Heating Corp., 68 F.3d at 570-71; Gully v. First Nat’l Bank in Meridian, 299 U.S. at 118, 57 S.Ct. 96. But the federal law dispute in this case — whether NASDAQ violated its duty to provide a fair and orderly market for the Facebook IPO — is of a different sort.13

As already explained, that duty is not simply coincidental to UBS’s state law claims; it is the duty on which the claims rest. Thus, this case is not at all akin to Gunn, in which the Supreme Court ruled that a federal patent law question arising in the context of a state malpractice action was not sufficiently substantial to support federal jurisdiction over the malpractice action. See 133 S.Ct. at 1066-68. Not only was the patent question in Gunn derivative rather than direct; it was also merely “hypothetical” because of the backward looking nature of the claim. See id. at 1066 (noting that state court would, at most, consider what would have happened in prior federal proceeding if argument had been made). There is nothing indirect or hypothetical in UBS’s claim that NASDAQ failed in its “primary” duty to provide a fair and orderly market for the Facebook IPO. Moreover, the strong federal interest in an exchange’s performance of that duty is evident from the Exchange Act’s specific identification of fair and orderly markets as an animating object of that legislation, see 15 U.S.C. § 78k-1(a)(1)(C), and from its provision conditioning national exchange registration on a demonstration of (and subsequent compliance with) internal rules that promote fair and orderly markets, see id., §§ 78s(g)(l), 78u(d)-(f), 78s(h)(l)-(4); see also D’Alessio v. N.Y. Stock Exch., Inc., 258 F.3d at 100 (stating that issues requiring interpretation and application of federal securities laws and related statutory and regulatory requirements are “areas of undisputed strong federal interest”); Friedlander v. Troutman, Sanders, Lockerman & Ash-more, 788 F.2d 1500, 1504 (11th Cir.1986) (“The comprehensive scheme of statutes and regulations designed to police the securities industry is indicative of a strong federal interest.”). The SEC has recognized that the need for fair and orderly markets is greatest when a stock offering is being made to the investing public. NASDAQ’s alleged violation of its duty to provide a fair and orderly market arises in just that context, indeed, in connection with one of the largest public offerings of securities in the nation’s history. Such circumstances compel the conclusion that UBS’s state law claims raise substantial, disputed federal issues — issues important to the federal system as a whole.

*10303. Federal-State Balance

The final Gunn-Grable factor “is concerned with the appropriate ‘balance of federal and state judicial responsibilities.’ ” Gunn v. Minton, 133 S.Ct. at 1068 (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. at 314, 125 S.Ct. 2363). Here, this factor strongly supports federal jurisdiction. Far from threatening the federal-state balance envisioned by Congress in this area, the exercise of federal jurisdiction here comports with Congress’s expressed preference for alleged violations of the Exchange Act, and of rules and regulations promulgated thereunder, to be litigated in a federal forum. See 15 U.S.C. § 78aa(a) (providing federal courts with “exclusive jurisdiction of violations of [Exchange Act] or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by [Exchange Act] or the rules and regulations thereunder”).

Indeed, among our sister circuits, the Fifth and Ninth have concluded that certain disputes involving state law claims against SROs confer exclusive federal jurisdiction under § 78aa. See Sacks v. Dietrich, 663 F.3d 1065, 1068-69 (9th Cir. 2011) (concluding that, though plaintiff pleaded only state law causes of action and did not name as defendant SRO or SRO employees, “liability turns on interpretation of rules that are approved by the SEC and whose violations are subject to exclusive federal jurisdiction,” citing § 78aa); Sparta Surgical Corp. v. Natl Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1211-12 (9th Cir.1998) (holding that “although [plaintiffs] theories are posited as state law claims, they are founded on the defendants’ conduct in suspending trading and de-listing the offering, the propriety of which must be exclusively determined by federal law” and therefore § 78aa provided for exclusive jurisdiction in federal court); Hawkins v. Nat’l Ass’n of Sec. Dealers, Inc., 149 F.3d 330, 331-32 (5th Cir.1998) (concluding that plaintiffs claims against SRO of breach of duty, conspiracy to deny relief, and failure to supervise, “though carefully articulated in terms of state law, are actions at law seeking to enforce liabilities or duties created by federal securities laws which are • governed exclusively by federal courts pursuant to 15 U.S.C. § 78aa”).

In Barbara, we declined to adopt such a broad reading of § 78aa. See 99 F.3d at 55 (holding that federal jurisdiction over state claims could not be premised on § 78aa because that statute refers to claims created by the Exchange Act and rules promulgated thereunder, not to claims created by state law). See also Karsner v. Lothian, 532 F.3d 876, 887-88 (D.C.Cir.2008) (concluding that SEC approval of National Association of Securities Dealers (“NASD”) rules did not bring all rules questions within § 78aa grant of exclusive federal jurisdiction); Ford v. Hamilton Investments, Inc., 29 F.3d 255, 258-59 (6th Cir.1994) (holding that dispute about arbitration compliance with NASD rules did not give rise to federal question jurisdiction based on SEC approval of rules, particularly where claim did not allege violation of securities laws or seek to enforce any duty created by such laws). We need not revisit that conclusion here. At this step of the Gunn-Grable test— which post-dates Barbara — it suffices for us to identify the jurisdiction grant of § 78aa as a signal that we will not upset the appropriate balance of federal and state judicial responsibilities by exercising federal jurisdiction in this case, where state claims necessarily raise a disputed issue about NASDAQ’s compliance with its Exchange Act duty to have provided a fair and orderly market for the Facebook IPO. See D’Alessio v. N.Y. Stock Exch., Inc., *1031258 F.3d at 104 (noting that exclusive jurisdiction grant of § 78aa signals recognition of strong federal interest in regulation of securities industry and exchanges). Indeed, that conclusion is only reinforced where, as here, a party’s efforts to have that federal law duty assessed by reference to state law principles — e.g., good faith, fair dealing, negligence — could undermine Congress’s expectations for uniformity in an exchange’s performance of specified Exchange Act duties. Cf. Gunn v. Minton 133 S.Ct. at 1067 (observing that state court’s hypothetical assessment of how patent issue might have been resolved in prior federal proceeding did not upset federal-state balance favoring uniform body of patent law because it would result neither in a binding ruling of federal law nor a conflicting ruling of state law).

In sum, upon conducting the analysis prescribed by Gunn-Grable, we conclude that UBS’s state claims against NASDAQ necessarily raise disputed issues of federal law of significant interest to the federal system as a whole, and that the adjudication of state claims presenting such disputes in the federal courts would not disrupt any federal-state balance envisioned by Congress. See Grable & Sons Metal Prods., Inc. v. Dane Eng’g & Mfg., 545 U.S. at 314-15, 125 S.Ct. 2363. Accordingly, we conclude that the district court correctly exercised federal jurisdiction here.

B. Arbitrability

1. Who Decides Arbitrability

UBS contends that, even if the district court properly exercised jurisdiction in this case, it erred in concluding that it, rather than an arbitrator, should decide whether UBS’s claims are subject to .arbitration. See NASDAQ OMX Grp., Inc. v. UBS Sec. LLC, 957 F.Supp.2d at 403-05. We review this issue de novo, see Contec v. Remote Solution Co., 398 F.3d 205, 208 (2d Cir.2005), and we conclude that the district court correctly identified arbitrability as a question for the court to decide in this case.

The law generally treats arbitrability as an issue for judicial determination “unless the parties clearly and unmistakably provide otherwise.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (internal quotation marks and brackets omitted); accord VRG Linhas Aereas S.A. v. MatlinPatterson Global Opportunities Partners II L.P., 717 F.3d 322, 325-26 (2d Cir.2013). UBS and NASDAQ made no such alternative provision here. Rather, their Services Agreement is silent as to who should decide arbitrability.

We have found the “clear and unmistakable” provision satisfied where a broad arbitration clause expressly commits all disputes to arbitration, concluding that all disputes necessarily includes disputes as to arbitrability. See PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1199 (2d Cir.1996). But we have not reached the same conclusion where a broad arbitration clause is subject to a qualifying provision that at least arguably covers the present dispute. See Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir.2002). In such circumstances, we have identified ambiguity as to the parties’ intent to have questions of arbitrability — which would include whether a dispute falls within or outside the scope of the qualifier — decided by .an arbitrator. See id. Here, the- broad arbitration clause in the parties’ Services Agreement is subject to qualification: “Except as may be provided in the NASDAQ OMX Requirements, all claims, disputes, controversies and other matters in question between the Parties to this Agreement ... shall be settled by final and binding arbitration.” Services Agreement, § 18.A, A. 139 (emphasis added). As explained in the next section of this opinion, *1032one of the provisions of the NASDAQ OMX Requirements at least arguably immunizes NASDAQ from liability for the type of claim asserted by UBS, making it far from “clear and unmistakable” that the Services Agreement provides UBS with an arbitrable claim. Thus, we cannot conclude that UBS and NASDAQ clearly and unmistakably committed questions of arbitrability to an arbitrator rather than the court.

In urging otherwise, UBS submits that the Services Agreement’s quoted carve-out provision is irrelevant because NASDAQ never adopted the referenced limiting requirements. This misapprehends the relevant standard. The Services Agreement need not clearly remove the question of arbitrability from arbitration in order for that question to be one for judicial determination. Rather, UBS must point to a clear and unmistakable expression of the parties’ intent to submit arbitrability disputes to arbitration. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. at 83, 123 S.Ct. 588. UBS cannot carry that burden by pointing to a broad arbitration clause that the parties subjected to a carve-out provision.

UBS nevertheless maintains that any ambiguity as to the parties’ intent respecting resolution of questions of arbitrability is eliminated by the Services Agreement’s incorporation of AAA rules, which provide for arbitrability to be decided by the arbitrator. See Services Agreement, § 18.B, A. 139 (“Except as otherwise provided herein or by agreement of the Parties, any arbitration proceeding shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association or in accordance with such other rules and procedures as are agreed to by the parties.”); AAA Commercial Arbitration Rules & Mediation Procedures, R-7 (Oct. 1, 2013) (“The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.”).

In fact, the Services Agreement does not clearly and unmistakably direct that questions of arbitrability be decided by AAA rules; rather, it provides for AAA rules to apply to such arbitrations as may arise under the Agreement. As noted, Section 18.A of the Services Agreement carves out certain issues from arbitration, a circumstance that thus delays application of AAA rules until a decision is made as to whether a question does or does not fall within the intended scope of arbitration, in short, until arbitrability is decided. Thus, this case is not akin to those in which we have construed the incorporation of AAA rules into an agreement with a broad arbitration clause to signal the parties’ clear and unmistakable intent to submit arbitrability disputes to arbitration. See, e.g., Contec Corp. v. Remote Solution Co., 398 F.3d at 208; cf. Zachariou v. Manios, 68 A.D.3d 539, 539, 891 N.Y.S.2d 54, 55 (1st Dep’t 2009) (holding that reference to AAA rules in conjunction with narrow arbitration provision does not constitute clear and unmistakable evidence of intent to have arbitrator decide arbitrability).

Accordingly, we conclude that the district court correctly determined that it should resolve the arbitrability of UBS’s claims rather than commit that question to an arbitrator.

C. Arbitrability of UBS’s Claims

Insofar as UBS challenges the district court’s determination that its claims against NASDAQ are not arbitrable, our review is de novo. See Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 26 (2d Cir.2002). Two questions are relevant to determining arbitrability: “(1) whether *1033the parties have entered into a valid agreement to arbitrate, and, if so, (2) whether the dispute at issue comes within the scope of the arbitration agreement.” In re Am. Express Fin. Advisors Sec. Litig., 672 F.3d 113, 128 (2d Cir.2011). Neither UBS nor NASDAQ disputes the validity of their agreement to arbitrate; thus, the sole issue on appeal is whether that agreement reaches UBS’s claims.

In deciding that question, we are mindful that federal and state policies favoring arbitration, see CompuCredit Corp. v. Greenwood, — U.S. -, 132 S.Ct. 665, 669, 181 L.Ed.2d 586 (2012); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 295 (2d Cir.2013); Matter of Brady v. Williams Capital Grp., L.P., 14 N.Y.3d 459, 468, 902 N.Y.S.2d 1, 6, 928 N.E.2d 383 (2010) (noting “strong state policy favoring arbitration agreements”), give rise to an “important presumption[ ]” that “any doubts concerning the scope of arbitrable issues be resolved in favor of arbitration,” Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 406 (2d Cir. 2009) (internal quotation marks omitted). At the same time, however, we recognize the “overarching principle that arbitration is a matter of contract,” American Express Co. v. Italian Colors Rest., — U.S. -, 133 S.Ct. 2304, 2309,186 L.Ed.2d 417 (2013), and that “it is the language of the contract that defines the scope of disputes subject to arbitration,” EEOC v. Waffle House, Inc., 534 U.S. 279, 289, 122 S.Ct. 754,151 L.Ed.2d 755 (2002). Thus, parties may be compelled to arbitrate disputes— “but only those disputes” — that they have contracted to submit to arbitration. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); see Stolt-Nielsen S.A. v. Animal-Feeds Int’l Corp., 559 U.S. 662, 684, 130 S.Ct. 1758,176 L.Ed.2d 605 (2010) (observing that “courts and arbitrators must not lose sight of the purpose of the exercise: to give effect to the intent of the parties”); Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir.2002) (“Arbitration is a creature of contract, and a person may only be compelled to arbitrate a dispute to the extent that he has agreed to do so.”); Matter of Salvano v. Merrill Lynch, Pierce, Fenner & Smith, 85 N.Y.2d 173, 182, 623 N.Y.S.2d 790, 794, 647 N.E.2d 1298 (1995) (holding with respect to contractual agreement regarding arbitration, that court’s role is “limited to interpretation and enforcement of the terms agreed to by the parties”).

In this case, the Services Agreement states the parties’ intent to submit all disputes to arbitration “except as provided in the NASDAQ OMX Requirements.” Services Agreement, § 18.A, A. 139. The Agreement defines “NASDAQ OMX Requirements” to include NASDAQ rules and rule interpretations. See id. § I.A., A. 122-23.

The NASDAQ rule pertinent here is Rule 4626, which generally precludes NASDAQ members from seeking compensation for losses attributable to the exchange’s handling of securities transactions:

Except as provided for in paragraph (b) below, Nasdaq and its affiliates shall not be liable for any losses, damages, or other claims arising out of the Nasdaq Market Center or its use. Any losses, damages, or other claims, related to a failure of the Nasdaq Market Center to deliver, display, transmit, execute, compare, submit for clearance and settlement, adjust, retain priority for, or otherwise correctly process an order, Quote/Order, message, or other data entered into, or created by, the Nasdaq Market Center shall be absorbed by the member, or the member sponsoring the customer, that entered the order, *1034Quote/Order, message, or other data into the Nasdaq Market Center.

Rule 4626(a). Because the parties subjected their otherwise broad arbitration agreement to the limitations imposed by NASDAQ rules, we conclude that there could not have been any intent to arbitrate claims precluded by Rule 4626(a).

UBS disputes that its claims against NASDAQ fall within the preclusive language of Rule 4626(a). The argument is defeated by the plain language of the rule, which reaches “any losses, damages, or other claims arising out of the Nasdaq Market Center or its use,” except as provided in subparagraph (b). As earlier noted, all of UBS’s claims allegedly derive from its use of the purportedly malfunctioning Nasdaq Market Center to participate in the Facebook IPO. Moreover, UBS claims that as a result of NASDAQ’s market failures, NASDAQ did not correctly process UBS’s Facebook orders in that it did not provide timely notice of confirmation. Rule 4626(a) specifically identifies losses attributable to NASDAQ’s failure “correctly [to] process an order” as ones that must be “absorbed” by the exchange member. Thus, we conclude that UBS’s claims fall within Rule 4626(a).14

UBS nevertheless argues that because Rule 4626 does not explicitly preclude arbitration, a court cannot conclude that the parties did not intend to arbitrate UBS’s claims. UBS cites no authority for the proposition that an affirmative rejection of arbitration is required to demonstrate a lack of intent to arbitrate. In any event, such a requirement is particularly unwarranted here where the agreed limit on arbitration is a rule that precludes not simply arbitration of a claim, but the claim itself. In such circumstances, the question of arbitrability depends on whether the challenged claims do or do not fall within the limiting rule’s preclusion. UBS’s claims fall within the preclusive language of Rule 4626(a) and, thus, are not arbitrable.

That conclusion finds further support in the single Rule 4626(b) exception relevant here: subsection (b)(3), a provision specifically addressed to Facebook-IPO losses. Proposed by NASDAQ and approved by the SEC in March 2013, Rule 4626(b)(3) establishes “a voluntary accommodation program” for certain member claims arising from the Facebook IPO. SEC Release No. 34-69216, 78 Fed.Reg. at 19,041. Toward that end, it provides a process for claims of injury resulting from “the Nasdaq Halt and Imbalance Cross Process in connection with the initial public offering of Facebook, ... including any delay in delivering of confirmations of orders.” *1035Rule 4626(b)(3). The new subsection prescribes, inter alia, how losses will be measured, the requirements for submitting a claim, the evaluator of the claim, the priority in which claims will be paid, and the maximum total program payment — $62 million. See Rule 4626(b)(3)(A)-(G).

The need to amend Rule 4626 — and to secure SEC approval for the amendment— to afford NASDAQ members some compensation for losses incurred in the Face-book IPO reinforces the conclusion that when UBS and NASDAQ agreed to subject the arbitration clause in their Services Agreement to the limitations of Rule 4626(a), they signaled that it was not their intent to arbitrate claims precluded by that rule.

In urging otherwise, UBS emphasizes that participation in the Rule 4626(b)(3) accommodation program is voluntary and that both the SEC and NASDAQ acknowledged that members were free to forego the program and pursue alternative remedies. See SEC Release No. 34-69216, 78 Fed.Reg. at 19,046 (“[A] member is free to elect not to submit a claim for compensation under the accommodation program and choose instead to pursue other remedies.”); NASDAQ Ltr. to SEC, Sept. 17, 2012, at 5, A. 337 (“Members that would prefer not to release Nasdaq and instead to attempt to pursue claims against it, notwithstanding the otherwise applicable provisions of Rule 4626 [and other potential defenses], are obviously free to do so.”). These statements were issued in response to certain concerns raised during the rule’s public comment period about the program’s liability release requirement. See Rule 4626(b)(3)(H). These statements do not identify what claims members might alternatively pursue, much less suggest that members can pursue claims foreclosed by Rule 4626(a) except as provided in a 4626(b) exception.

In any event, our concern here is not to identify what, if any, alternative judicial remedies a NASDAQ member might pursue against that exchange in connection with the Facebook IPO. Nor is it to discern what defenses NASDAQ might raise to such claims. Our singular purpose is to discern the scope of a broad arbitration provision that is specifically limited by, among other things, NASDAQ rules. Because Rule 4626(a) specifically disallows member claims against NASDAQ for losses sustained in trading securities on that exchange, we conclude that the parties did not intend to submit such foreclosed claims to binding arbitration. The only rule exception applicable here — Rule 4626(b)(3)— does not support a different conclusion. Thus, like the district court, we conclude that UBS’s claims against NASDAQ are not subject to arbitration.

Because we thus identify no merit in any of UBS’s challenges to the preliminary injunction entered against it in this case, we hereby affirm that injunction.

III. Conclusion

To summarize, we conclude as follows:

1. Federal jurisdiction is properly exercised in this case because, although UBS’s challenged arbitration demand against NASDAQ asserts only claims created by state law, (a) the claims necessarily raise actually disputed issues of federal securities law, (b) those issues are of substantial importance to the federal system as a whole, and (c) the exercise of federal jurisdiction in these circumstances will not disrupt any federal-state balance approved by Congress.

2. The district court properly decided the question of arbitrability because the parties never clearly and unmistakably expressed an intent to submit that question to arbitration, and such an intent cannot *1036be inferred where, as here, a broad arbitration clause contains a carve-out provision that, at least arguably, covers the instant dispute.

3. UBS’s claims against NASDAQ are not subject to arbitration because they fall within the preclusive language of NASDAQ Rule 4626(a), and the parties specifically agreed that their arbitration agreement was subject to limitations identified in, among other things, NASDAQ Rules.

The order of the district court preliminarily enjoining UBS from pursuing arbitration against NASDAQ is hereby AFFIRMED, and the case is remanded to the district court for such further proceedings as are warranted consistent with this opinion.