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Insight Into Assigning Arbitrability

Law360 (June 4, 2009, 12:00 AM EDT) -- Over the past decade, courts have wrestled with the question: Who decides whether an arbitration agreement is valid and enforceable, the court or the arbitrator?

There is consensus that an arbitrator may decide an arbitration clause’s scope if the agreement “clearly and unmistakably” assign that issue to the arbitrator.[1] The debate, however, has continued over the circular conundrum of whether the court or the arbitrator should decide the threshold issue of the arbitration clause’s validity and legality.

Decisions cover challenges based on unconscionability,[2] whether arbitration costs...
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