Sep 16, 2021
Arbitrability: Who Decides Whether the Matter Is Subject To The Contract’s Arbitration Clause?
[Published in Advocate, September 2021, the Journal of Consumer Attorneys’ Associations for Southern California]
When you first read an arbitration agreement involved with your client’s dispute, you should determine the exact issues the parties have agreed to submit to arbitration. Although threshold questions of arbitrability (e.g. whether there is valid agreement to arbitrate) are typically decided by the court, the parties to an arbitration agreement may agree to delegate questions regarding the enforceability of the agreement itself to the arbitrator. If so, the arbitrator, and not the court, determines the validity and other delegated issues (such as scope) of the arbitration agreement.