Arbitration

The following obligations cannot be specifically enforced: (1) An obligation to render personal service; (2) An obligation to employ another in personal service; (3) An agreement to submit a controversy to arbitration; (4) An agreement to perform an act which the party has not power lawfully to perform when required to do so; (5) An agreement to procure the act or consent of the wife of the contracting party or of any other third persons; or (6) An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.

Section 2 of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., provides, in pertinent part: "A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." Section 2 has the effect of preempting conflicting Alabama law, in particular § 8-1-41(3), Ala.Code 1975, which makes predispute agreements to arbitrate unenforceable.

It thereby makes enforceable a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce.

Title Max had the initial burden of producing "some evidence" that a contract calling for arbitration exists and that the underlying transaction involves interstate commerce.

A written agreement to submit an existing controversy to arbitration or a provision in a written contract to submit to arbitration a subsequent controversy between the parties is valid, enforceable, and irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract.

However, AS 09.43.010 — 09.43.180 do not apply to a labor-management contract unless they are incorporated into the contract by reference or their application is provided for by statute.

Notwithstanding (a) of this section, AS 09.43.010 — 09.43.180 do not apply to an agreement or a contract unless the agreement or contract is entered into before January 1, 2005, and is not otherwise subject to AS 09.43.300 — 09.43.595. A person may not waive the effective date of this subsection, and a waiver of the effective date of this subsection is void.

On application of a party showing an agreement described in AS 09.43.010 , and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue and if the agreement is found to exist shall order arbitration.

Based on both the statutory language and the policy behind Alaska's Arbitration Act, we hold that state arbitration law aligns with federal law and does not permit a court determining arbitrability to consider the validity of the underlying agreement.

AS 09.43.300 — 09.43.595 govern an agreement to arbitrate made on or after January 1, 2005.

An agreement contained in a record to submit to arbitration an existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract, and except as provided by (b) of this section.

To the extent an agreement that contains an arbitration provision is invalidated on the grounds that a party was induced into entering into the agreement by fraud, the arbitration provision in the agreement is not enforceable, and the party is not required to prove that the party was induced into entering into the arbitration provision by fraud.

The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. (d) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled.

An order for arbitration may not be refused on the ground that the claim in issue lacks merit or because a fault or ground for the claims sought to be arbitrated has not been shown.

In other words, under AS 09.48.010, a court may properly adjudicate claims that the arbitration clause itself is void, but not claims that the entire contract is void.

In this case, decided before Buckeye, the superior court declined to refer the case to arbitration based on its finding that the underlying contract was void as a matter of public policy. Under Buckeye, such determinations are for the arbitrator to make. We REVERSE and REMAND for proceedings consistent with this opinion.

The issue of Jacobs’s consent therefore presented a question of arbitrability — “whether [the] controversy is subject to [the] agreement to arbitrate” — and was properly for the court to decide.

A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. For purposes of this section, a pending court action or special proceeding includes an action or proceeding initiated by the party refusing to arbitrate after the petition to compel arbitration has been filed, but on or before the date of the hearing on the petition. This subdivision shall not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health care provider made pursuant to Section 1295. (d) The petitioner is a state or federally chartered depository institution that, on or after January 1, 2018, is seeking to apply a written agreement to arbitrate, contained in a contract consented to by a respondent consumer, to a purported contractual relationship with that respondent consumer that was created by the petitioner fraudulently without the respondent consumer’s consent and by unlawfully using the respondent consumer’s personal identifying information, as defined in Section 1798.92 of the Civil Code. If the court determines that a written agreement to arbitrate a controversy exists, an order to arbitrate that controversy may not be refused on the ground that the petitioner’s contentions lack substantive merit. If the court determines that there are other issues between the petitioner and the respondent which are not subject to arbitration and which are the subject of a pending action or special proceeding between the petitioner and the respondent and that a determination of such issues may make the arbitration unnecessary, the court may delay its order to arbitrate until the determination of such other issues or until such earlier time as the court specifies.

If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c), the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.

(a) (1) In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, that the drafting party pay certain fees and costs during the pendency of an arbitration proceeding, if the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach. (2) The arbitration provider shall provide an invoice for any fees and costs required for the arbitration proceeding to continue to all of the parties to the arbitration. The invoice shall be provided in its entirety, shall state the full amount owed and the date that payment is due, and shall be sent to all parties by the same means on the same day. To avoid delay, absent an express provision in the arbitration agreement stating the number of days in which the parties to the arbitration must pay any required fees or costs, the arbitration provider shall issue all invoices to the parties as due upon receipt. Any extension of time for the due date shall be agreed upon by all parties. Once the invoice has been paid, the arbitration provider shall provide to all parties a document that reflects the date on which the invoice was paid.

We hold that section 1281.98, properly construed, is not preempted by the FAA. Although section 1281.98 has been 1 HOHENSHELT v. SUPERIOR COURT Opinion of the Court by Liu, J. interpreted by various Courts of Appeal to impose an inflexible and sometimes harsh rule resulting in loss of arbitral rights, we reject that rigid construction and instead conclude that the statute does not abrogate the longstanding principle, established by statute and common law, that one party’s nonperformance of an obligation automatically extinguishes the other party’s contractual duties only when nonperformance is willful, grossly negligent, or fraudulent. As explained below, the Legislature sought to deter companies and employers from engaging in strategic nonpayment of arbitration fees; we find no indication that it intended to strip companies and employers of their contractual right to arbitration where nonpayment of fees results from a good faith mistake, inadvertence, or other excusable neglect.

We agree that if section 1281.98 were construed to mean that any failure to make timely payment, regardless of the circumstances, invariably results in forfeiture of arbitral rights, the statute would be anomalous in the context of general contract law principles. As we have explained, however, a drafting party can avoid forfeiture of its right to arbitration by showing that the delay was excusable under section 473, Civil Code section 3275, or Civil Code section 1511, the background principles that generally apply to other contractual obligations.

We conclude that such claims are in fact arbitrable if the arbitration permits an employee to vindicate his or her statutory rights. As explained, in order for such vindication to occur, the arbitration must meet certain minimum requirements, including neutrality of the arbitrator, the provision of adequate discovery, a written decision that will permit a limited form of judicial review, and limitations on the costs of arbitration.

Accordingly, consistent with the majority of jurisdictions to consider this issue, we conclude that when an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court.

(b) If the drafting party materially breaches the arbitration agreement and is in default under subdivision (a), the employee or consumer may unilaterally elect to do any of the following: (1) Withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction. If the employee or consumer withdraws the claim from arbitration and proceeds with an action in a court of appropriate jurisdiction, the statute of limitations with regard to all claims brought or that relate back to any claim brought in arbitration shall be tolled as of the date of the first filing of a claim in any court, arbitration forum, or other dispute resolution forum. (2) Continue the arbitration proceeding, if the arbitration provider agrees to continue administering the proceeding, notwithstanding the drafting party’s failure to pay fees or costs. The neutral arbitrator or arbitration provider may institute a collection action at the conclusion of the arbitration proceeding against the drafting party that is in default of the arbitration for payment of all fees associated with the employment or consumer arbitration proceeding, including the cost of administering any proceedings after the default. (3) Petition the court for an order compelling the drafting party to pay all arbitration fees that the drafting party is obligated to pay under the arbitration agreement or the rules of the arbitration provider. (4) Pay the drafting party’s fees and proceed with the arbitration proceeding. As part of the award, the employee or consumer shall recover all arbitration fees paid on behalf of the drafting party without regard to any findings on the merits in the underlying arbitration.

(a) The court shall impose a monetary sanction against a drafting party that materially breaches an arbitration agreement pursuant to subdivision (a) of Section 1281.97 or subdivision (a) of Section 1281.98, by ordering the drafting party to pay the reasonable expenses, including attorney’s fees and costs, incurred by the employee or consumer as a result of the material breach. (b) In addition to the monetary sanction described in subdivision (a), the court may order any of the following sanctions against a drafting party that materially breaches an arbitration agreement pursuant to subdivision (a) of Section 1281.97 or subdivision (a) of Section 1281.98, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (1) An evidence sanction by an order prohibiting the drafting party from conducting discovery in the civil action. (2) A terminating sanction by one of the following orders: (A) An order striking out the pleadings or parts of the pleadings of the drafting party. (B) An order rendering a judgment by default against the drafting party. (3) A contempt sanction by an order treating the drafting party as in contempt of court.

(c) If the employee or consumer withdraws the claim from arbitration and proceeds in a court of appropriate jurisdiction pursuant to paragraph (1) of subdivision (b), both of the following apply: (1) The employee or consumer may bring a motion, or a separate action, to recover all attorney’s fees and all costs associated with the abandoned arbitration proceeding. The recovery of arbitration fees, interest, and related attorney’s fees shall be without regard to any findings on the merits in the underlying action or arbitration. (2) The court shall impose sanctions on the drafting party in accordance with Section 1281.99. (d) If the employee or consumer continues in arbitration pursuant to paragraphs (2) through (4) of subdivision (b), inclusive, the arbitrator shall impose appropriate sanctions on the drafting party, including monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions.

We conclude, for reasons explained below, that the arbitration agreement is unenforceable and that therefore the Court of Appeal's judgment must be reversed.

Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.

We agree with the Court of Appeal that section 1281.98 is not preempted by the FAA. But in light of our clarification that section 1281.98 does not displace background statutes permitting relief to a breaching party in certain circumstances, we reverse the Court of Appeal’s order “direct[ing] the trial court to vacate its order denying the motion to lift the stay of litigation and to enter an order lifting the stay.” (Hohenshelt, supra, 99 Cal.App.5th at p. 1326.) We direct the Court of Appeal to remand the matter to the trial court for consideration of whether Golden State may be excused for its failure to timely pay arbitration fees, such that the stay of litigation should not be lifted and the parties should be returned to arbitration, and whether the delay resulted in compensable harm to Hohenshelt.

(a) (1) In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration under Section 1281.2. (2) After an employee or consumer meets the filing requirements necessary to initiate an arbitration, the arbitration provider shall immediately provide an invoice for any fees and costs required before the arbitration can proceed to all of the parties to the arbitration. The invoice shall be provided in its entirety, shall state the full amount owed and the date that payment is due, and shall be sent to all parties by the same means on the same day. To avoid delay, absent an express provision in the arbitration agreement stating the number of days in which the parties to the arbitration must pay any required fees or costs, the arbitration provider shall issue all invoices to the parties as due upon receipt. (b) If the drafting party materially breaches the arbitration agreement and is in default under subdivision (a), the employee or consumer may do either of the following: (1) Withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction. (2) Compel arbitration in which the drafting party shall pay reasonable attorney’s fees and costs related to the arbitration.

Our opinion does not preclude parties to an arbitration agreement to expressly designate that any arbitration proceeding should move forward under the FAA’s procedural provisions rather than under state procedural law. We simply hold that the language of the arbitration clause in this case, calling for the application of the FAA “if it would be applicable,” should not be read to preclude the application of 1281.2(c), because it does not conflict with the applicable provisions of the FAA and does not undermine or frustrate the FAA’s substantive policy favoring arbitration.

Here, the trial court provided no explanation for its conclusion that the instant case is one of those “peculiar situations” (Cronus Investments, supra, 35 Cal.4th at p. 393) addressed by the “third-party exception” set forth in section 1281.2, subdivision (c). Nor, as the above-cited cases reflect, is it.

An agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof, or a written provision in the articles of association or bylaws of an association or corporation of which both parties are members to arbitrate any controversy which may arise between them in the future, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, or an agreement in writing between the parties to a marriage to submit to arbitration any controversy between them with respect to the dissolution of their marriage shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally, subject to the requirements of subsection (e) of section 46b-66 , in the case of an award with respect to a dissolution of marriage.

It is well established that [arbitration is a creature of contract. ... [A] person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do.

Therefore, the arbitration provision in an agreement is effectively an agreement that is separate and distinct from the broader contract, and a court of law may enforce only those agreements that the parties actually make.

Any provision in a construction contract for the performance of work on a construction site located in this state that purports to require that any dispute arising under the construction contract be mediated, arbitrated or otherwise adjudicated in or under the laws of a state other than Connecticut shall be void and of no effect, regardless of whether the construction contract was executed in this state.

As used in sections 42-158i to 42-158n , inclusive, unless the context otherwise requires: (1) “Owner” means any individual, corporation, nonprofit corporation, partnership, limited partnership, limited liability company or other business entity that is the owner of record or lessee of real property upon which construction, renovation or rehabilitation is to be or is being performed pursuant to a construction contract regarding such real property. (2) “Construction contract” or “contract” means any contract for the construction, renovation or rehabilitation in this state on or after October 1, 1999, including any improvements to real property that are associated with such construction, renovation or rehabilitation, or any subcontract for construction, renovation or rehabilitation between an owner and a contractor, or between a contractor and a subcontractor or subcontractors, or between a subcontractor and any other subcontractor. “Construction contract” or “contract” does not include (A) any public works or other building contract entered into with this state, the United States, any other state, and any municipality or other political subdivision of this state or any other state, (B) a contract or project funded or insured by the United States Department of Housing and Urban Development, (C) a contract between an owner and a contractor for an amount of twenty-five thousand dollars or less or a subcontract which results from such a contract, or (D) a contract for a building intended for residential occupancy containing four or less units.

a party who contests the making of a contract containing an arbitration provision cannot be compelled to arbitrate the threshold issue of the existence of an *387 agreement to arbitrate.

we agree with the Appellate Court that the judgment of the trial court must be reversed and the case remanded for further proceedings. The judgment of the Appellate Court is affirmed.

A written agreement to submit to arbitration any controversy existing at or arising after the effective date of the agreement is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract, without regard to the justiciable character of the controversy, and confers jurisdiction on the Chancery Court of the State to enforce it and to enter judgment on an award.

As a matter of policy, we adopt the majority federal view that reference to the AAA rules evidences a clear and unmistakable intent to submit arbitrability issues to an arbitrator. We do so in the belief that Delaware benefits from adopting a widely held interpretation of the applicable rule, as long as that interpretation is not unreasonable. The majority view does not, however, mandate that arbitrators decide arbitrability in all cases where an arbitration clause incorporates the AAA rules. Rather, it applies in those cases where the arbitration clause generally provides for arbitration of all disputes and also incorporates a set of arbitration rules that empower arbitrators to decide arbitrability.

Notwithstanding anything contained in this chapter by word or inference to the contrary, this chapter shall not apply to labor contracts with either public or private employers where such contracts have been negotiated by, or the employees covered thereby are represented by, any labor organization or collective bargaining agent or representative.

In determining any matter arising under this chapter, the Court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute. This chapter also applies to arbitration agreements between employers and employees or between their respective representatives, except as otherwise provided in § 5725 of this title.

In this case, the arbitration clause begins by requiring arbitration of any controversy arising out of or relating to the LLC Agreement in accordance with the AAA rules. But it continues by expressly authorizing the nonbreaching Members to obtain injunctive relief and specific performance in the courts. Thus, despite the broad language at the outset, not all disputes must be referred to arbitration. Since this arbitration clause does not generally refer all controversies to arbitration, the federal majority rule does not apply, and something other than the incorporation of the AAA rules would be needed to establish that the parties intended to submit arbitrability questions to an arbitrator. There being no such clear and unmistakable evidence of intent, the trial court properly undertook the determination of substantive arbitrability.

12.12 Arbitration Any controversy or claim arising out of or relating to this Agreement or the breach of this Agreement shall be settled by arbitration ... in accordance with the then-existing rules of the American Arbitration Association (“AAA”).... Each Member agrees with the other Members that the other Members would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms.... Accordingly, it is agreed that, in addition to any other remedy to which the nonbreaching Members may be entitled, at law or in equity, the nonbreaching Members shall *80 be entitled to injunctive relief to prevent breaches of the provisions of this Agreement and specifically to enforce the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction thereof.

The term “Court” means the Court of Chancery of this State, except where otherwise specifically provided. The making of an agreement described in § 5701 of this title specifically referencing the Delaware Uniform Arbitration Act [§ 5701 et seq. of this title] and the parties’ desire to have it apply to their agreement confers jurisdiction on the Court to enforce the agreement under this chapter and to enter judgment on an award thereunder, except as provided in § 5718 of this title.

Unless an arbitration agreement complies with the standard set forth in subsection (a) of this section for the applicability of the Delaware Uniform Arbitration Act, any application to the Court of Chancery to enjoin or stay an arbitration, obtain an order requiring arbitration, or to vacate or enforce an arbitrator’s award shall be decided by the Court of Chancery in conformity with the Federal Arbitration Act [9 U.S.C. § 1 et seq.], and such general principles of law and equity as are not inconsistent with that Act. In such cases, the other provisions of this Delaware Uniform Arbitration Act are without standing and cases shall be adjudicated in accordance with the Court of Chancery’s Rules of Procedure.

(d) Jurisdiction of the Court of Common Pleas. — Notwithstanding anything to the contrary in this Chapter 57 of this title, the term “Court” in this chapter shall refer to the Court of Common Pleas with respect to all actions arising from an arbitration agreement in or relating to a contract to provide consumer credit, and the making of such an agreement to arbitrate issues arising from the extension of consumer credit shall confer jurisdiction on the Court of Common Pleas, and not the Court of Chancery, to enforce the agreement and to enter judgment on an award.

Because the LLC Agreement involves interstate commerce, the Federal Arbitration Act (FAA) governs.

Unless an arbitration agreement “specifically referenc[es] the Delaware Uniform Arbitration Act . . . and the parties’ desire to have it apply to their agreement,” id. § 5702(a), “any application to the Court of Chancery to . . . obtain an order requiring arbitration . . . shall be decided by the Court of Chancery in conformity with the Federal Arbitration Act . . . and such general principles of law and equity as are not inconsistent with that Act,” id. § 5702(c). The Arbitration Provision does not reference the Delaware Uniform Arbitration Act, so the Federal Arbitration Act governs.

The Court of Chancery possesses jurisdiction to confirm and review arbitration awards under the FAA, provided the parties agreed to jurisdiction within Delaware.

(1) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract. (2) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. (3) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

Any controversy or claim arising under or related to this Agreement or to the Property (with the exception of "consumer products" as defined by the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. Section 2301 et seq., and the regulations promulgated under the Act) or with respect to any claim arising by virtue of any representations alleged to have been made by the Seller or Seller's representative, shall be settled and finally determined by mediation or binding arbitration as provided by the Federal Arbitration Act ( 9 U.S.C. Section 1-14 ) and similar state statutes and not by a court of law.

Under both federal statutory provisions and Florida's arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.

These cases reason that where an arbitration clause refers solely to disputes or controversies "under" or "arising out of" the contract, arbitration is restricted to claims "relating to the interpretation of the contract and matter of performance." Mediterranean Enters., 708 F.2d at 1464 (quoting Kinoshita, 287 F.2d at 953 ). On the other hand, the phrase "arising out of or relating to" the contract has been interpreted broadly to encompass virtually all disputes between the contracting parties, including related tort claims.

As the prevailing case law illustrates, even in contracts containing broad arbitration provisions, the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause. Disputes arise in many and varied contexts and the mere coincidence that the parties in dispute have a contractual relationship will ordinarily not be enough to mandate arbitration of the dispute. In other words, the mere fact that the dispute would not have arisen but for the existence of the contract and consequent relationship between the parties is insufficient by itself to transform a dispute into one "arising out of or relating to" the agreement.

As in Dusold and Michaels , because this case involves a claim sounding in tort, i.e., negligence, we must determine whether the tort claim, as alleged in the complaint, arises from and bears such a significant relationship to the contract between the parties as to mandate application of the arbitration clause.

Even under a broad approach, the dispute does not create a "significant relationship" to the contract because none of the allegations in the complaint refer to or mention the sales agreement between the Seiferts and U.S. Home. Accordingly, we are unable to conclude that the tort action dispute in this case bears a significant relationship to the contract or that the parties in contracting necessarily contemplated the existence and arbitration of future tort claims for personal injuries based on a party's common law negligence.

The absence of any mention of the parties' rights in the event of personal injuries or death arising out of any alleged tortious conduct such as that which allegedly occurred in this case creates ambiguity and uncertainty as to the intent of the parties. Under a well-established rule of construction, we are constrained to construe the provisions of the U.S. Home contract against its drafter, U.S. Home.

Moreover, public policy also supports the result we reach in this case. As noted by the trial court, to require petitioner to submit her tort claim to binding arbitration would deprive her of her rights to a trial by jury, due process and access to the courts.

Based on this holding, we quash the decision below and approve the decision in Michaels . The case is remanded with directions that the trial court's denial of arbitration be affirmed.

(1) The Revised Florida Arbitration Code governs an agreement to arbitrate made on or after July 1, 2013. (2) Until June 30, 2016, the Revised Florida Arbitration Code governs an agreement to arbitrate made before July 1, 2013, if all the parties to the agreement or to the arbitration proceeding so agree in a record. Otherwise, such agreements shall be governed by the applicable law existing at the time the parties entered into the agreement.

(3) The Revised Florida Arbitration Code does not affect an action or proceeding commenced or right accrued before July 1, 2013. (4) Beginning July 1, 2016, an agreement to arbitrate shall be subject to the Revised Florida Arbitration Code.

At the outset, we must note that courts around the country, as well as courts here in Florida, have pronounced differing views on the interpretation of contracts and their arbitration provisions. Not surprisingly, courts have given different meaning to clauses on the basis of the actual terminology used.

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.

This act does not apply to arbitration agreements between employers and employees or between their respective representatives (unless otherwise provided in the agreement).

On application of a party showing an agreement described in section 7-901, Idaho Code, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.

(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.

(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.

(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist for the revocation of any contract, including failure to comply with the terms of the Workplace Transparency Act

Any agreement, clause, covenant, or waiver that is a unilateral condition of employment or continued employment and requires the employee or prospective employee to waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit related to an unlawful employment practice to which the employee or prospective employee would otherwise be entitled under any provision of State or federal law, including that which purports to shorten the applicable statute of limitation, apply non-Illinois law to an Illinois employee's claim, or require a venue outside of Illinois to adjudicate an Illinois employee's claim, is against public policy, void to the extent it denies an employee or prospective employee a substantive or procedural right or remedy related to alleged unlawful employment practices

we hold that the public policy behind the antiwaiver provisions of sections 3 — 606 and 3 — 607 of the Nursing Home Care Act are not “grounds as exist at law or in equity for the revocation of any contract” within the meaning of section 2 of the FAA

the purpose of this savings clause is to preserve general contract defenses such as lack of mutuality, lack of consideration, fraud, duress, unconscionability, and the like, that can truly apply to any contract.

(c) This Act applies to contracts entered into, modified, or extended on or after the effective date of this Act.

This Act does not apply to any collective bargaining agreements that are entered into in and subject to the Illinois Public Labor Relations Act or the National Labor Relations Act.

Any agreement, clause, covenant, or waiver that is a mutual condition of employment or continued employment may include provisions that would otherwise be against public policy as a unilateral condition of employment or continued employment, but only if the agreement, clause, covenant, or waiver is in writing, demonstrates actual, knowing, and bargained-for consideration from both parties, and acknowledges the right of the employee or prospective employee to:

Failure to comply with the provisions of subsection (c) shall establish a rebuttable presumption that the agreement, clause, covenant, or waiver is a unilateral condition of employment or continued employment that is governed by subsection (a) or (b).

except that any agreement between a patient and a hospital or health care provider to submit to binding arbitration a claim for damages arising out of (1) injuries alleged to have been received by a patient, or (2) death of a patient, due to hospital or health care provider negligence or other wrongful act, but not including intentional torts, is also subject to the Health Care Arbitration Act.

(a) On application of a party showing an agreement described in Section 1, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.

(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

(1) report any good faith allegation of unlawful employment practices to any appropriate federal, State, or local government agency enforcing discrimination laws; (2) report any good faith allegation of criminal conduct to any appropriate federal, State, or local official; (3) participate in a proceeding related to unlawful employment practices, including any litigation brought by any federal, State, or local government agency or any other person who alleges that the employer has violated any State, federal, or local law, regulation, or rule; (4) make any truthful statements or disclosures required by law, regulation, or legal process; (5) request or receive confidential legal advice; and (6) engage in concerted activity to address work-related issues.

(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. That issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.

(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this Section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.

A written agreement to submit to arbitration an existing controversy is valid, enforceable, and irrevocable unless grounds exist at law or in equity for the revocation of the written agreement.

A provision in a written contract to submit to arbitration a future controversy arising between the parties is valid, enforceable, and irrevocable unless grounds exist at law or in equity for the revocation of the contract. This subsection shall not apply to any of the following: a. A contract of adhesion. b. A contract between employers and employees. c. Unless otherwise provided in a separate writing executed by all parties to the contract, any claim sounding in tort whether or not involving a breach of contract.

We find it unnecessary to address IGF’s third claim (that this policy is not an adhesion contract within the meaning of Iowa Code section 679A.1) because of our view that the FAA preempts the Iowa act.

Thus, if the federal act is applicable, it preempts the Iowa statute by operation of the Supremacy Clause.

Under the FAA, 9 U.S.C. § 2 , [a] written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

The issue remains whether the federal act preempts the Iowa act. It is clear that it does if the policy is a “contract evidencing a transaction involving commerce.”

The FAA does not exclude adhesion contracts. The Iowa statute, by excluding adhesion contracts, is in conflict with the FAA.

The sale of federal crop insurance clearly has a sufficient economic nexus with interstate commerce, as we have described above, to invoke the arbitration provisions of 9 U.S.C. § 2 , despite the limitations recognized by the Supreme Court on Commerce Clause authority as discussed in Lopez and Morrison

As the federal act applies, and is in conflict with the provisions of our state arbitration statute exempting adhesion contracts, it was error for the district court to refuse to enforce the arbitration clause. We reverse and remand for further proceedings.

Heaberlin argues that the federal act is not applicable here because this contract is not a “transaction involving commerce.” That is the key issue in this case.

An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable, except upon a ground that exists at law or in equity for the revocation of a contract.

The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. (c) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not: (1) Waive or agree to vary the effect of the requirements of K.S.A. 5-427(a), 5-428(a), 5-430, 5-439(a) or (b), 5-448 or 5-450, and amendments thereto;

waive the right under K.S.A. 5-438, and amendments thereto, of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under K.S.A. 5-423 through 5-453, and amendments thereto, but an employer and a labor organization may waive the right to representation by a lawyer in a labor arbitration.

A party to an agreement to arbitrate or arbitration proceeding may not waive, or the parties may not vary the effect of, the requirements of this section or K.S.A. 5-425, 5-429, 5-436, 5-440, 5-442(d) or (e), 5-444, 5-445, 5-446, 5-447(a) or (b), 5-451, 5-452 or 5-453, and amendments thereto.

(d) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue, pending final resolution of the issue by the court, unless the court otherwise orders.

(2) agree to unreasonably restrict the right under K.S.A. 5-431, and amendments thereto, to notice of the initiation of an arbitration proceeding; (3) agree to unreasonably restrict the right under K.S.A. 5-434, and amendments thereto, to disclosure of any facts by a neutral arbitrator; or

Except as otherwise provided in subsections (b) and (c), a party to an agreement to arbitrate or to an arbitration proceeding may waive or the parties may vary the effect of, the requirements of K.S.A. 5-423 through 5-453, and amendments thereto, to the extent permitted by law.

(a) K.S.A. 5-423 through 5-453, and amendments thereto, govern an agreement to arbitrate made on or after July 1, 2018. (b) K.S.A. 5-423 through 5-453, and amendments thereto, govern an agreement to arbitrate made before July 1, 2018, if all parties to the agreement or to the arbitration proceeding so agree in the record.

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

For the following reasons, we reverse the ruling of the court of appeal, holding the arbitration clause in the Sky Zone agreement is adhesionary and therefore unenforceable.

Additionally, the lack of mutuality in the arbitration clause fortifies our finding that it is adhesionary.

Although patrons are required to check a box adjacent to the top of the third paragraph, significantly no check box was placed next to the arbitration language.

Finding our analysis in Aguillard instructive, we consider the following factors to determine the enforceability of the arbitration clause in the Sky Zone Agreement: (1) the physical characteristics of the arbitration clause, (2) the distinguishing features of the arbitration clause, (3) the mutuality of the arbitration clause, and (4) the relative bargaining strength of the parties. After our review of the Agreement in light of the above factors, we hold the arbitration clause is adhesionary and not enforceable because of its placement in the Agreement and its lack of mutuality. Examining the physical characteristics of the arbitration clause, we observe the arbitration language is consistent in size and font with the other provisions in the Agreement.

The factors discussed in Aguillard simply provided a template for considering consent to an arbitration clause contained in a standard contract. Aguillard did not create a per se rule that any degree of non-mutuality in an arbitration agreement renders it unenforceable, nor did Aguillard prescribe a definitive rule that arbitration agreements must be delineated a particular way to be enforceable. Considering the Aguillard analysis in its entirety, it is clear we viewed the arbitration provision in the context of the overall contract and the surrounding circumstances, and our determination was based on weighing several factors.

Thus, in Aguillard, we found the arbitration clause did not lack sufficient mutuality to invalidate the clause as adhesionary because the arbitration clause severely limited both the defendants’ and the plaintiff’s right to litigate, and the defendants did not reserve their right to litigate in the document.

We are mindful that setting forth a legal requirement relative to a particular form or method of distinguishing or highlighting arbitration clauses, or requiring term-for- term mutuality in an arbitration clause could risk running afoul of the FAA. However, the Supreme Court has made it clear that state courts may apply standard state law contract defenses to arbitration agreements.

Finally, as to the third Aguillard factor, the mutuality of the obligation to arbitrate, the majority acknowledges that “Aguillard did not create a per se rule that any degree of non-mutuality in an arbitration agreement renders it unenforceable,”4 and that “requiring term-for-term mutuality in an arbitration clause could risk running afoul of the [Federal Arbitration Act],”5 but then inexplicably invalidates the arbitration clause in the Sky Zone Agreement precisely because it lacks the term-for- term mutuality that it acknowledges the law does not require, and may even prohibit.

Pursuant to this definition, a predicate factor to consider in determining whether a contract is adhesionary is the existence of unequal bargaining power. Indeed, this is one of the four factors delineated in the Aguillard analysis. Yet, the majority opinion does not mention, much less weigh, this factor in conducting its analysis

WEIMER, J., dissenting. I agree with the majority’s assessment that the factors outlined in Aguillard v. Auction Management Corp., 04-2804 (La. 6/29/05), 908 So.2d 1, are an appropriate starting point for analyzing the issue presented in this matter.1 See Duhon v. ActiveLaf, LLC, 16-0818, slip op. at 7 (La. 10/__/16). However, I respectfully disagree with the majority’s conclusion that analysis of the Sky Zone Agreement using Aguillard’s four-factor “framework” supports a finding that the arbitration clause is adhesionary and not enforceable. To the contrary, I find the arbitration clause to be valid and enforceable.

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.

This chapter also applies to arbitration agreements between employers and employees or between their respective representatives, unless otherwise provided in the agreement.

On application of a party showing an agreement described in section 5927 and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.

On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.

An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

However, to be enforceable, an arbitration agreement must constitute a validly formed contract.

Under Maine contract law principles, “[a] contract exists when the parties mutually assent to be bound by all its material terms [and] the assent is either expressly or impliedly manifested in the contract.”

Although the parties have not raised the issue, we note that our decision in Nisbet v. Faunce can be read to imply that, to be bound by an arbitration provision, a party must have either signed an agreement containing it or agreed to it in a separate writing.

we need not rest our conclusion in her favor on Nisbet because Uber has not shown that Sarchi assented to Uber’s arbitration provision by any sufficient means, whether through her signature, in a writing, or otherwise.

We have held, however, that a party need not actually have read the terms of the contract in order to be bound by them. See Francis v. Stinson, 2000 ME 173, ¶ 42, 760 A.2d 209 (stating that “parties to a contract are deemed to have read the contract and are bound by its terms”).

However, that conclusion went beyond the holding of the case on which we relied to support it. See Me. Cent. R.R. Co. v. Bangor & Aroostook R.R. Co., 395 A.2d 1107, 1121 (Me. 1978). There, we decided that an exchange of writings was sufficient to manifest an intent to arbitrate but not that it was necessary.

Uber could have designed its rider app to incorporate scrollwrap or clickwrap contracts that provided adequate notice of Uber’s original and updated Terms and required consumers to express actual assent, and it apparently decided not to do so. The consequence of that choice is that Sarchi was not bound by either the original Terms or the updated Terms. The entry is: Order denying motion to compel arbitration affirmed.

This appeal primarily concerns whether a Settlement Agreement, 1 which contains an arbitration clause, gave the arbitrator the authority to determine whether the Agreement was valid and enforceable. We conclude that it did and affirm the judgment of the Superior Court.

The Superior Court’s conclusion that the Agreement contained within it the authority to allow the arbitrator to decide the validity of the Agreement as a whole was not an error of law. Maine has a “broad presumption favoring substantive arbitrability,” Macomber v. MacQuinn-Tweedie, 2003 ME 121, ¶ 13 , 834 A.2d 131 (quotation marks omitted), and the language of this arbitration clause, that “any dispute regarding the interpretation, enforcement, or implementation or execution of this agreement or the documents necessary to effectuate it will be decided by binding arbitration,” warrants the application of this presumption.

Also, as we have already established, the sisters did not waive their substantive arbitrability challenge when they failed to file a motion to stay the arbitration pursuant to section 5928.

In conclusion, the Superior Court did not err in affirming the arbitrator’s award and in concluding that the arbitrator had the authority to hear and decide the challenges to the validity of the Agreement as a whole. The entry is: Judgment affirmed.

It is now clear that Minnesota courts must apply the FAA to transactions that affect interstate commerce. Because respondents do not dispute that the fiber-optic transmission lease involves interstate commerce within the meaning of Terminix, the arbitration clause in the lease between SHAL and Onvoy must be analyzed under federal law and, therefore, the district court and court of appeals erred in analyzing this case under Atcas . We overrule Atcas to the extent it conflicts with the holding in Allied-Bruce Terminix v. Dobson, 513 U.S. 265 , 115 S.Ct. 834 , 130 L.Ed.2d 753 (1995). The instant case must be analyzed under the Federal Arbitration Act and the federal cases interpreting that act.

Applying the reasoning set forth in these cases, we conclude that the language "arising under" in the arbitration clause at issue appears broad enough to encompass some issues regarding contract formation.

In concluding that the arbitration clause in question is broad and prescribes arbitration of most claims, we do not mean to indicate that we will find all future arbitration clauses broad enough to encompass all claims. [6] We limit our determination to the facts of this case and the particular arbitration clause at issue. Parties who want the courts to retain jurisdiction over matters of contract formation, or any other particular issues they foresee may arise in the business relationship, must expressly state such an intent when drafting the arbitration clause in the contract.

This exception allows a court to hear a plaintiff's claim that the disputed contract is void, while claims that a contract is voidable must be arbitrated.

We find the distinction made by the Second Circuit in Sandvik persuasive and adopt the exception to the Prima Paint doctrine enunciated therein; parties may not be compelled to arbitrate claims if they have alleged that the contract at issue never legally existed. Therefore, allegations that a contract is void may be heard by a court, even if not specifically directed to the arbitration clause, while allegations that a contract is voidable must be sent to arbitration.

Therefore, we remand to the district court to determine whether this lease is the product of an interested-director transaction sufficient to void the lease under Minn.Stat. § 302A.255.

We reverse and remand to the district court for further proceedings in accordance with this opinion.

A written agreement to submit to arbitration any controversy arising between the parties after the agreement is made is valid and enforceable except upon grounds that exist at law or in equity for the revocation of a contract.

On the application of a party showing an agreement described in 27-5-114 and the opposing party's refusal to arbitrate, the district court shall order the parties to proceed with arbitration; but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of that issue raised and shall order arbitration if it finds for the applying party or deny the application if it finds for the opposing party.

Arbitration agreements between employers and employees or between their respective representatives are valid and enforceable and may be subject to all or portions of this chapter if the agreement so specifies, except 27-5-115 , 27-5-311 , 27-5-312 (1) and (3) through (5), 27-5-313 , and 27-5-322 apply in each case.

Except as permitted under subsection (3), this subsection does not apply to: (a) claims arising out of personal injury, whether based on contract or tort; (b) any contract by an individual for the acquisition of real or personal property, services, or money or credit when the total consideration to be paid or furnished by the individual is $5,000 or less; (c) any agreement concerning or relating to insurance policies or annuity contracts except for those contracts between insurance companies; or (d) claims for workers' compensation.

A written agreement between members of a trade or professional organization to submit to arbitration any controversies arising between members of the trade or professional organization after the agreement is made is valid and enforceable except upon grounds that exist at law or in equity for the revocation of a contract.

A written agreement to submit an existing controversy to arbitration is valid and enforceable except upon grounds that exist at law or in equity for the revocation of a contract.

Specifically, § 27-5-114(4), MCA, stated that "notice that a contract is subject to arbitration pursuant to this chapter shall be typed in underlined capital letters on the first page of the contract; and unless such notice is displayed thereon, the contract may not be subject to arbitration." This section (since repealed) was in effect in November 1993, at the time that Cut Bank entered into the construction contract with Tom Patrick.

In so providing, the legislature sought to ensure that parties to a contract were aware, when they signed a contract subject to an arbitration clause, that they were waiving their constitutional right to access the courts.

The law imposing the notice requirements as to contractual arbitration clauses was subsequently overturned by the United States Supreme Court and repealed by the Montana Legislature.

This arbitration provision unreasonably favors Global to the detriment of Ossello and is therefore unconscionable and unenforceable.

(b) A provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable, and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract, if the provision is entered into voluntarily and willingly.

Subsections (a) and (b) of this section do not apply to a claim for workers' compensation.

Subsection (b) of this section does not apply to: (1) A claim arising out of personal injury based on tort; (2) A claim under the Nebraska Fair Employment Practice Act; (3) Any agreement between parties covered by the Motor Vehicle Industry Regulation Act; and

(4) Except as provided in section 44-811 , any agreement concerning or relating to an insurance policy other than a contract between insurance companies including a reinsurance contract.

The following statement shall appear in capitalized, underlined type adjoining the signature block of any standardized agreement in which binding arbitration is the sole remedy for dispute resolution: THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

The Uniform Arbitration Act applies only to agreements made subsequent to August 30, 1987.

On application of a party showing an agreement described in section 25-2602.01 and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order for the moving party, otherwise, the application shall be denied.

especially in light of the fact that the Legislature used the term “shall” in reference to such language in § 25-2602.02. Therefore, when a contract which attempts to establish binding arbitration as the sole remedy fails to strictly comply with § 25-2602.02, the arbitration clause is voidable and unenforceable

Nebraska law, in contrast, requires that when arbitration is the sole remedy for dispute resolution of a contract, the following statement "shall appear in capitalized, underlined type adjoining the signature block[:] THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES." [7] The failure to include this statement renders the arbitration agreement unenforceable under Nebraska law.

Arbitration in Nebraska is governed by the UAA as enacted in Nebraska. But if arbitration arises from a contract involving interstate commerce, it is governed by the FAA.

Thus, when a contract is governed by the FAA, the state notice requirements are preempted by the FAA.

We conclude that the FAA applies to the Agreement before us and that the FAA preempts Nebraska law which conflicts with the FAA.

By this act, the Legislature made clear that an arbitration clause is not valid in any motor vehicle franchise agreement.

The U.S. Supreme Court has directly addressed situations similar to the case at bar and has held that state law, even when incorporated by a choice-of-law provision, cannot prevent the enforcement of an arbitration clause otherwise valid under the FAA.

Arbitration is purely a matter of contract, and a party cannot be required to submit a dispute to arbitration unless he or she has agreed to do so.

And, while more complex transactions may impli- cate interstate commerce, we hold that a simple contract for the sale of residential real estate is an inherently intrastate activity.20 On the facts of this case, the UAA governs the purchase agreement.

As a general rule, these courts hold that voluntary participation in an arbitration proceeding on the merits of a dispute will result in a waiver or forfeiture of the right to later challenge arbitrability

And we are focused on Charter’s program or activity of residential real estate lending, which included the sale to the Wilczewskis.

We conclude that although the FAA does not preempt § 25-2602.01(f)(4), the LRRA does preempt the application of this Nebraska stat- ute to foreign risk retention groups, and that as a result, the arbitration clause in the policy APIC issued to Speece was not prohibited by § 25-2602.01(f)(4).

Giving full effect to the parties’ choice of Nebraska law, we harmonize the FAA in conjunc- tion with the McCarran-Ferguson Act and § 25-2602.01(f)(4) and conclude that state law regulating the business of insur- ance is not preempted by the FAA.

Section 25-2602.01(f)(4) invalidates the parties’ delegation provision in the RPA and operates here to reserve issues of arbitrability for the court to decide.

Therefore, prior to the 1996 amendment to article I, § 13, the public policy of this state prohibited predispute binding arbitration clauses.

We therefore conclude that the public policy of the State of Nebraska did not change until § 25-2602.01 became effective on June 11,1997. Any contract clause allowing for predispute bind *300 ing arbitration entered into before that date is void as against public policy.

Because the Disclosure Statement was separate from the Purchase Agreement, the Buyers’ claim that Silvus vio- lated § 76-2,120 was not subject to the arbitration provision in the Purchase Agreement.

Because the FAA, at 9 U.S.C. § 2 , preempts inconsistent state laws that apply solely to the enforceability of arbitration provisions in contracts evidencing a transaction involving commerce, 16 the arbitration agreement did not need to strictly comply with the language of the UAA

(b) Court Decides Enforceability of ADR Agreement [16-18] A party has a constitutional right to adjudication of a justiciable dispute, and the law will not find a waiver of that right absent direct and explicit evidence of actual intent of a party’s agreement to do so.

Disputes about arbitrability for a court to decide include threshold questions such as whether the parties are bound by a given arbitration clause

Above the buyers’ signature line in the Purchase Agreement appeared a sentence that read: “This con- tract contains an arbitration provision unless waived in Section 31 which may be enforced by the parties.”

Whenever the amount of a controversy subject to the terms of an otherwise valid arbitration agreement is within the jurisdiction of the Small Claims Court under section 25-2802 , a party may submit the controversy to the Small Claims Court for ultimate resolution under sections 25-2801 to 25-2807 .

A controversy submitted to the Small Claims Court under this section shall not be transferred to the regular docket of the county court under section 25-2805 .

V. CONCLUSION For the reasons stated above, we find that Kramer did not produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law with respect to the Sellers, and therefore, the grant of summary judgment in favor of the Sellers is affirmed. The grant of summary judgment in favor of Eagle Eye is reversed, because the arbitration clause of the inspection agreement is unenforceable due to the absence of the statutorily required notice language and because there is evidence that Eagle Eye has admitted that it should have found the termite damage during its inspection. Accordingly, there are genuine issues of material fact for trial; the judgment in favor of Eagle Eye is hereby reversed, and the cause as to Eagle Eye is remanded for further proceedings. Affirmed in part, and in part reversed and REMANDED FOR FURTHER PROCEEDINGS.

The principle that a party may waive arbitrability by not timely objecting has been effectively codified under the UAA, which authorizes judicial vacatur of an arbitration award when “[t]here was no arbitration agreement and the issue was not adversely determined in proceedings under section 25-2603, and the party did not participate in the arbitration hearing without raising the objection[.]”28 In the instant case, the conduct of the Garlocks resulted in a waiver of the right to challenge arbitrability.

[T]he language “This contract contains [an] arbitration provision which may be enforced by the parties” was not underlined as required by Statute. Although the language was set forth in bold face type, this does not comply with - 528 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports GARLOCK v. 3DS PROPERTIES Cite as 303 Neb. 521 [§ 25-2602.02] and our Court has required strict compli- ance with this Statute in order to enforce [an] arbitration clause. [Citation omitted.] This failure is fatal to the enforcement of the arbitration clause.

Above the signature line in the purchase agreement appeared a sentence which read: “This contract contains an arbitration provision which may be enforced by the parties.” (Emphasis omitted.) This sentence appeared in font which was bolded and capitalized, but was not underlined.

The federal laws that are relevant to this argument are: (1) the FAA, which generally provides that arbitration provisions in written contracts are valid and enforceable; (2) the McCarran-Ferguson Act (MFA), 15 U.S.C. §§ 1011 through 1015 (2012), which provides in relevant part at § 1012(b) that a federal statute does not preempt a state statute “regulating the business of insurance” unless the federal statute “specifically relates to the business of insurance”; and (3) the LRRA, which provides in relevant part at § 3902(a)(1) that a foreign risk retention group is exempt from any state law that would “regulate, directly or indirectly, the operation of a risk retention group.”

(d) Contract provisions agreed to by the parties to a contract control over contrary provisions of the act other than subsections (e) and (f) of this section.

Any such association may provide in its bylaws for arbitrating any claim for loss or damage, where a member and the association fail to agree thereon.

Our conclusion that the county court lacks jurisdiction is bolstered by § 25-2618.01(a), which empowers a party to submit a controversy, which controversy is subject to the terms of an otherwise valid arbitration agreement, to the small claims court when the amount of the controversy is within the small claims court's jurisdictional limit. It further provides that a controversy submitted to the small claims court under this section shall not be transferred to the regular docket of the county court under Neb.Rev.Stat. § 25-2805 (Cum.Supp.2006). See § 25-2618.01(b). Thus, while the Legislature allowed for very small claims to be adjudicated in the small claims court rather than through arbitration, it is significant to the issue before us that such claims could not be removed to the regular docket of the county court.

a. An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract. b. The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. c. An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

The waiver-of-rights language, however, must be clear and unambiguous -- that is, the parties must know that there is a 16 distinction between resolving a dispute in arbitration and in a judicial forum.

Whatever words compose an arbitration agreement, they 1 Article I, Paragraph 9 of the 1947 New Jersey Constitution guarantees that “[t]he right of trial by jury shall remain inviolate.” That guarantee has appeared in every New Jersey Constitution. See N.J. Const. of 1776 art. XXII; N.J. Const. of 1844 art. I, § 7. 19 must be clear and unambiguous that a consumer is choosing to arbitrate disputes rather than have them resolved in a court of law

No particular form of words is necessary to accomplish a clear and unambiguous waiver of rights. It is worth remembering, however, that every “consumer contract” in New Jersey must “be written in a simple, clear, understandable and easily readable way.” N.J.S.A. 56:12-2.

b. Before a controversy that is subject to an agreement to arbitrate arises, a party to the agreement may not: (1) waive or agree to vary the effect of the requirements of section 5a., 6a., 8, 17a., 17b., 26, or 28 of this act; (2) agree to unreasonably restrict the right to notice of the initiation of an arbitration proceeding pursuant to section 9 of this act; (3) agree to unreasonably restrict the right to disclosure of any facts by an arbitrator pursuant to section 12 of this act; or (4) waive the right of a party to an agreement to arbitrate to be represented by a lawyer pursuant to section 16 of this act at any proceeding or hearing pursuant to this act.

d. If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

c. If the court finds that there is no enforceable agreement, it may not, pursuant to subsection a. or b. of this section, order the parties to arbitrate. d. The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

The NJAA, which provides a default procedure for the selection of an arbitrator and generally addresses the conduct of the arbitration, clearly expresses the Legislature’s intent that an arbitration agreement may bind the parties without designating a specific arbitrator or arbitration organization or prescribing a process for such a designation. N.J.S.A. 2A:23B-11(a), -15. Applying principles of New Jersey law that generally govern contracts, we hold that the Agreement at issue is valid and enforceable. We modify the 3 trial court’s judgment as to the governing law and forum for the arbitration, and we reinstate that judgment as modified.

Nowhere in the arbitration clause is there any explanation that plaintiff is waiving her right to seek relief in court for a breach of her statutory rights. The contract states that either party may submit any dispute to “binding arbitration,” that “[t]he parties shall agree on a single arbitrator to resolve the dispute,” and that the arbitrator’s decision “shall be final and may be entered into judgment in any court of competent jurisdiction.” The provision does not explain what arbitration is, nor does it indicate how arbitration is different from a proceeding in a court of law.

We now reverse. The absence of any language in the arbitration provision that plaintiff was waiving her statutory right to seek relief in a court of law renders the provision unenforceable.

a. Except as otherwise provided in subsections b. and c. of this section, a party to an agreement to arbitrate or to an arbitration proceeding may waive or, the parties may vary the effect of, the requirements of this act to the extent permitted by law.

c. A party to an agreement to arbitrate or arbitration proceeding may not waive, or the parties may not vary the effect of, the requirements of this section or section 3a., 3c., 7, 14, 18, 20d., 20e., 22, 23, 24, 25a., 25b., 29, 30, 34 or 35. Provided however, that nothing in this act shall preclude the parties from expanding the scope of judicial review of an award by expressly providing for such expansion in a record.

a. On filing a summary action with the court by a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement: (1) if the refusing party does not appear or does not oppose the summary action, the court shall order the parties to arbitrate; and (2) if the refusing party opposes the summary action, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

a. This act governs all agreements to arbitrate made on or after January 1, 2003 with the exception of an arbitration between an employer and a duly elected representative of employees under a collective bargaining agreement or collectively negotiated agreement.

c. On or after January 1, 2005, this act governs an agreement to arbitrate whenever made with the exception of an arbitration between an employer and a duly elected representative of employees under a collective bargaining agreement or collectively negotiated agreement. d. This act shall not apply to agreements to arbitrate made before July 4, 1923.

(a) Application to compel arbitration; stay of action. A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502, the court shall direct the parties to arbitrate. Where any such question is raised, it shall be tried forthwith in said court. If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration.

(b) Limitation of time. If, at the time that a demand for arbitration was made or a notice of intention to arbitrate was served, the claim sought to be arbitrated would have been barred by limitation of time had it been asserted in a court of the state, a party may assert the limitation as a bar to the arbitration on an application to the court as provided in section 7503 or subdivision (b) of section 7511. The failure to assert such bar by such application shall not preclude its assertion before the arbitrators, who may, in their sole discretion, apply or not apply the bar. Except as provided in subdivision (b) of section 7511, such exercise of discretion by the arbitrators shall not be subject to review by a court on an application to confirm, vacate or modify the award.

(c) Notice of intention to arbitrate. A party may serve upon another party a demand for arbitration or a notice of intention to arbitrate, specifying the agreement pursuant to which arbitration is sought and the name and address of the party serving the notice, or of an officer or agent thereof if such party is an association or corporation, and stating that unless the party served applies to stay the arbitration within twenty days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time. Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. An application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded. Notice of such application shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. Service of the application may be made upon the adverse party, or upon his attorney if the attorney's name appears on the demand for arbitration or the notice of intention to arbitrate. Service of the application by mail shall be timely if such application is posted within the prescribed period.

Any provision in an arbitration agreement or arbitration rules which waives the right to apply for a stay of arbitration is hereby declared null and void.

It is settled that a party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent “evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes.” (Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6 ; see, also, Matter of Marlene Inds. Corp. [Carnac Textiles], 45 NY2d 327, 333-334 .) The agreement must be clear, explicit and unequivocal (Matter of Acting Supt. of Schools *184 [United Liverpool Faculty Assn.], 42 NY2d 509, 512 ; Matter of Lehman v Ostrovsky, 264 NY 130, 132 ) and must not depend upon implication or subtlety (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 291 ; Matter of Doughboy Inds. [Pantasote Co.], 17 AD2d 216, 220 [Breitel, J.]).

Nowhere is the right to compel arbitration extended to a nonparty to the agreement, albeit another employee, and nowhere is a party to the agreement required to submit to the latter’s demand. Absent clear language to the contrary, this arbitration agreement between Waldron and Cross and Brown may not be so “‘extended by construction or implication’” to include an employee not a party to the agreement as Goddess urges.

2. a. Prohibition. No written contract for the sale or purchase of consumer goods, entered into on or after the effective date of this section, to which a consumer is a party, shall contain a mandatory arbitration clause. Nothing contained herein shall be construed to prohibit a non-consumer party from incorporating a provision within such contract that such non-consumer party agrees that the decision of the arbitrator or panel of arbitrators shall be final in its application to such non-consumer party and not subject to court review.

c. The term "mandatory arbitration clause" shall mean a term or provision contained in a written contract for the sale or purchase of consumer goods which requires the parties to such contract to submit any controversy thereafter arising under such contract to arbitration prior to the commencement of any legal action to enforce the provisions of such contract and which also further provides language to the effect that the decision of the arbitrator or panel of arbitrators in its application to the consumer party shall be final and not subject to court review. d. The term "arbitration" shall mean the use of a decision making forum conducted by an arbitrator or panel of arbitrators within the meaning and subject to the provisions of article seventy-five of the civil practice law and rules.

1. Definitions. a. The term "consumer" shall mean a natural person residing in this state. b. The term "consumer goods" shall mean goods, wares, paid merchandise or services purchased or paid for by a consumer, the intended use or benefit of which is intended for the personal, family or household purposes of such consumer.

(b) Application to stay arbitration. Subject to the provisions of subdivision (c), a party who has not participated in the arbitration and who has not made or been served with an application to compel arbitration, may apply to stay arbitration on the ground that a valid agreement was not made or has not been complied with or that the claim sought to be arbitrated is barred by limitation under subdivision (b) of section 7502.

Not only did that contract expire prior to the dispute and no written employment contract was in existence, but also, the mere continuation of her employment did not operate to extend the arbitration agreement of the expired employment contract. Although the conduct of Goddess and Cross and Brown, subsequent to the expiration of the contract, may be construed to imply an agreement to extend some of its provisions, “the threshold for clarity of agreement to arbitrate is greater than with respect to other contractual terms.”

There being no clear commitment obligating the parties to compulsory arbitration, the petition to stay arbitration should have been granted and the cross motion to compel the parties to proceed to arbitration denied. Accordingly, the order of the Appellate Division should be reversed, with costs. Chief Judge Cooke and Judges Jones, Wachtler, Meyer and Kaye concur; Judge Simons taking no part. Order reversed, with costs, motion to stay arbitration granted and cross motion to compel arbitration denied.

b. Mandatory arbitration clause null and void. The provisions of a mandatory arbitration clause shall be null and void. The inclusion of such clause in a written contract for the sale or purchase of consumer goods shall not serve to impair the enforceability of any other provision of such contract.

Contrary to plaintiff’s argument, we find that the sale/ purchase of the services defendant provided constitutes a transaction “involving commerce” within the meaning of the Federal Arbitration Act (see Citizens Bank v Alafabco, Inc., 539 US 52, *608 56 [2003]). Thus, we find that to the extent General Business Law § 399-c may prohibit the subject arbitration clause, it is preempted by federal law.

An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for revoking a contract.

The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. (c) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

(d) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

(a) Except as otherwise provided in subsections (b) and (c) of this section, a party to an agreement to arbitrate or to an arbitration proceeding may waive, or the parties may vary the effect of, the requirements of this Article to the extent provided by law.

(b) Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not: (1) Waive or agree to vary the effect of the requirements of G.S. 1-569.5(a), 1-569.6(a), 1-569.8, 1-569.17(a), 1-569.17(b), 1-569.26, or 1-569.28; (2) Agree to unreasonably restrict the right under G.S. 1-569.9 to notice of the initiation of an arbitration proceeding; (3) Agree to unreasonably restrict the right under G.S. 1-569.12 to disclosure of any facts by a neutral arbitrator; or (4) Waive the right under G.S. 1-569.16 of a party to an agreement to arbitrate to be represented by an attorney at any proceeding or hearing under this Article, but an employer and a labor organization may waive the right to representation by a lawyer in a labor arbitration.

A provision in any contract, subcontract, or purchase order for the improvement of real property in this State, or the providing of materials therefor, is void and against public policy if it makes the contract, subcontract, or purchase order subject to the laws of another state, or provides that the exclusive forum for any litigation, arbitration, or other dispute resolution process is located in another state.

Any provision in a contract requiring a party to the contract to waive his right to a jury trial is unconscionable as a matter of law and the provision shall be unenforceable. This section does not prohibit parties from entering into agreements to arbitrate or engage in other forms of alternative dispute resolution.

(c) A party to an agreement to arbitrate or to an arbitration proceeding may not waive, or the parties shall not vary the effect of, the requirements of this section or G.S. 1-569.3(a), 1-569.7, 1-569.14, 1-569.18, 1-569.20(d), 1-569.20(e), 1-569.22, 1-569.23, 1-569.24, 1-569.25(a), 1-569.25(b), 1-569.29, 1-569.30, 1-569.31. Any waiver contrary to this section shall not be effective but shall not have the effect of voiding the agreement to arbitrate.

Except as otherwise provided in this section, any provision in a contract entered into in North Carolina that requires the prosecution of any action or the arbitration of any dispute that arises from the contract to be instituted or heard in another state is against public policy and is void and unenforceable. This prohibition shall not apply to non-consumer loan transactions or to any action or arbitration of a dispute that is commenced in another state pursuant to a forum selection provision with the consent of all parties to the contract at the time that the dispute arises.

An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.

The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. - An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable. - If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

On motion to a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement: - If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and - If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

Chapter 32-29.3, N.D.C.C., contains the North Dakota Uniform Arbitration Act. When an arbitration clause is at issue, “[t]he court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.” N.D.C.C. § 32-29.3-06(2).

Resolving any doubts concerning the scope of arbitrable issues in favor of arbitration, we conclude the arbitration provision at issue is a broad provision which applies to Schwarzes’ claims based primarily on the relationship between Gierke and Jodee Schwarz and asserts a breach of an alleged duty Gierke owed to Jodee Schwarz. We therefore conclude the district court erred in denying Gierke’s motion to compel arbitration. IV [¶ 30] The district court order denying the motion to compel arbitration is reversed, and the case is remanded for entry of an order compelling arbitration.

"Arbitration agreement" means an agreement that subjects a family law dispute to arbitration.

Except as otherwise provided in subsections 2 and 3, a party to an agreement to arbitrate or to an arbitration proceeding may waive or, the parties may vary the effect of, the requirements of this chapter to the extent permitted by law. - Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not: - Waive or agree to vary the effect of the requirements of subsection 1 of section 32-29.3-05, subsection 1 of section 32-29.3-06, section 32-29.3-08, subsections 1 and 2 of section 32-29.3-17, or section 32-29.3-26 or 32-29.3-28;

Waive the right under section 32-29.3-16 of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under this chapter, but an employer and a labor organization may waive the right to representation by a lawyer in a labor arbitration.

The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

A party to an agreement to arbitrate or arbitration proceeding may not waive, or the parties may not vary the effect of, the requirements of this section or subsection 1 or 3 of section 32-29.3-03, section 32-29.3-07, 32-29.3-14, or 32-29.3-18, subsection 4 or 5 of section 32-29.3-20, section 32-29.3-22, 32-29.3-23, or 32-29.3-24, subsection 1 or 2 of section 32-29.3-25, or section 32-29.3-29 or 32-29.3-30.

Further, recognizing a strong state and federal public policy favoring the arbitration process, this Court resolves any doubts concerning the scope of arbitrable issues in favor of arbitration when there is a broad arbitration clause and no exclusion clause.

“A provision in any written contract * * * to settle by arbitration a controversy that subsequently arises out of the contract, or out of the refusal to perform the whole or any part of the contract, or any agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, or arising after the agreement to submit, * * * shall be valid, irrevocable, and enforceable, except upon grounds that exist at law or in equity for the revocation of any contract.”

Similarly, when a party challenges an arbitration provision as unconscionable pursuant to R.C. 2711.01(A), the party must show that the arbitration clause itself is unconscionable. If the court determines that the arbitration clause is enforceable, claims of unconscionability that relate to the contract generally, rather than the arbitration clause specifically, are properly left to the arbitrator in the first instance.

The key factor in First Options that distinguishes it from this case is that in First Options, the parties resisting arbitration had not personally signed the document containing the arbitration clause. See 514 U.S. at 941 , 115 S.Ct. at 1922 , 131 L.Ed.2d at 991 . The Supreme Court contrasted the situation before it with a situation in which the parties to a valid arbitration clause have a contract providing for arbitration of some issues, and a party resists arbitration of an issue on the assertion that the contract does not require arbitration of that particular *667 issue. Id., 514 U.S. at 944-945 , 115 S.Ct. at 1924-1925 , 131 L.Ed.2d at 994 . The presumption in favor of arbitrability applies in the latter situation, which is also present in the case sub judice. In the First Options situation, on the other hand, the presumption is against arbitrability because there is serious doubt that the party resisting arbitration has empowered the arbitrator to decide anything, including the arbitrator’s own scope of authority.

The second principle is that “the question of arbitrability — whether a[n] * * * agreement creates a duty for the parties to arbitrate the particular grievance — is undeniably an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.

Thus, in ABM Farms , we held that to defeat a motion under R.C. 2711.02 for a stay of litigation in favor of arbitration, “a party must demonstrate that the arbitration provision itself in the contract at issue, and not merely the contract in general, was fraudulently induced.”

For the reasons that follow, we find that a presumption in favor of the arbitrability of the parties’ dispute over the interpretation of Section 7.7(a)(i) of the agreement applies in the circumstances of this case, and that COSE, the party resisting arbitration, has failed to overcome the presumption.

The fourth principle is that “where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ ”

In applying the standard set forth in AT & T Technologies that the party resisting arbitration must meet in order to overcome the presumption in favor of arbitrability, we ask “whether, because of express exclusion or other forceful evidence, the dispute over the interpretation of [the ninety-day demand provision] *668 is not subject to the arbitration clause.”

Ohio law directs trial courts to grant a stay of litigation in favor of arbitration pursuant to a written arbitration agreement on application of one of the parties, in accordance with R.C. 2711.02(B). That statute provides: {¶ 29} “If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration.”

An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.

A written arbitration agreement entered into between an employer and employee and otherwise valid under subsection (1) of this section is voidable and may not be enforced by a court unless: (a) At least 72 hours before the first day of the employee’s employment, the employee has received notice in a written employment offer from the employer that an arbitration agreement is required as a condition of employment, and the employee has been provided with the required arbitration agreement that meets the requirements of, and includes the acknowledgment set forth in, subsection (6) of this section; or (b) The arbitration agreement is entered into upon a subsequent bona fide advancement of the employee by the employer.

The acknowledgment required by subsection (5) of this section must be signed by the employee and must include the following language in boldfaced type:

I acknowledge that I have received and read or have had the opportunity to read this arbitration agreement. I understand that this arbitration agreement requires that disputes that involve the matters subject to the agreement be submitted to mediation or arbitration pursuant to the arbitration agreement rather than to a judge and jury in court.

Subject to ORS 36.625 (8), the court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. (3) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled. (4) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

Except as otherwise provided in this section, a party to an agreement to arbitrate or to an arbitration proceeding may waive, or the parties may vary the effect of, the requirements of ORS 36.600 to 36.740 to the extent permitted by law.

Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not: (a) Waive or agree to vary the effect of the requirements of this section or ORS 36.615, 36.620 (1), 36.630, 36.675 (1) or (2), 36.720 or 36.730; (b) Agree to unreasonably restrict the right under ORS 36.635 to notice of the initiation of an arbitration proceeding; (c) Agree to unreasonably restrict the right under ORS 36.650 to disclosure of any facts by a neutral arbitrator; or (d) Waive the right under ORS 36.670 of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under ORS 36.600 to 36.740, but an employer and a labor organization may waive the right to representation by a lawyer in a labor arbitration.

A party to an agreement to arbitrate or arbitration proceeding may not waive, or the parties may not vary the effect of, the requirements of this section or ORS 36.625, 36.660, 36.680, 36.690 (4) or (5), 36.700, 36.705, 36.710, 36.715 (1) or (2), 36.735 or 36.740 or section 3 (1) or (3) or 31, chapter 598, Oregon Laws 2003. (4) Subsections (2) and (3) of this section do not apply to agreements to arbitrate entered into by two or more insurers, as defined by ORS 731.106, or self-insured persons for the purpose of arbitration of disputes arising out of the provision of insurance.

When clearly written and expressed, a provision in a written contract to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two (2) or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract;

provided, however, that the provisions of this chapter shall not apply to collective contracts between employers and employees, or between employers and associations of employees, in respect to terms or conditions of employment;

in all contracts of primary insurance, wherein the provision for arbitration is not placed immediately before the testimonium clause or the signature of the parties, the arbitration procedure may be enforced at the option of the insured, and in the event the insured exercises the option to arbitrate, then the provisions of this chapter shall apply and be the exclusive remedy available to the insured.

stating that unless the party served applies to stay the arbitration within twenty (20) days after such service they shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time. Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested.

Any provision in an arbitration agreement or arbitration rules that waives the right to apply for a stay of arbitration or prescribes a manner of notifying a party of an intention to commence arbitration that is more burdensome than that described in this section is hereby declared null and void.

The party required to send notice pursuant to subsection (b) of this section shall affirmatively include in the notice the rights being waived by failure to apply for the stay of arbitration. Said notice shall be done in bold print and highlighted.

If any suit or proceeding be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the suit is pending, upon being satisfied that the issue involved in the suit or proceeding is referable to arbitration under such an agreement, shall, on application of one of the parties, stay the trial of the action until the arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

If the making of the arbitration agreement or the failure, neglect, or refusal to perform the arbitration agreement is in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded, the court shall hear and determine the issue.

Where such an issue is raised, either party may, on or before the return day of the notice of application, demand a jury trial of the issue, and upon the demand of a jury trial the court shall make an order referring the issue or issues to a jury as in equity causes.

If the fees or costs to initiate an arbitration proceeding are not paid within thirty (30) days after the due date the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration under § 10-3-4.

If the drafting party materially breaches the arbitration agreement and is in default under subsection (a) of this section, the employee or consumer may do either of the following: (1) Withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction; or (2) Compel arbitration in which the drafting party shall pay reasonable attorneys’ fees and costs related to the arbitration.

if the fees or costs required to continue the arbitration proceeding are not paid within thirty (30) days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.

The court shall impose a monetary sanction against a drafting party that materially breaches an arbitration agreement pursuant to § 10-3-23(a) or § 10-3-24(a), by ordering the drafting party to pay the reasonable expenses, including attorneys’ fees and costs, incurred by the employee or consumer as a result of the material breach.

If a contractor principal on a bond furnished to guarantee performance or payment on a construction contract and the claimant are parties to a written contract with a provision to submit to arbitration any controversy thereafter arising under the contract, the arbitration provisions shall apply to the surety for all disputes involving questions of the claimant’s right of recovery against the surety.

In any of the following cases, the court must make an order vacating the award upon the application of any party to the arbitration: (1) Where the award was procured by corruption, fraud or undue means.

Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

The most recent amendment to. § 10-3-2 of the act eliminated this requirement for most contracts but conspicuously left unaffected the statutory mandate that agreements to arbitrate be “clearly written and expressed.”

The defendant confuses a clear expression of intent to arbitrate on the part of REECO with a clearly expressed agreement to arbitrate mutually assented to by both parties to the contract.

Mutual assent objectively manifested by the writings of the parties is a condition precedent to the formation of a binding agreement to arbitrate.

The contract’s broad language stating that disputes “shall be submitted to binding arbitration” comports with the statutory requirement that an arbitration agreement be “clearly written and expressed.”

The result in this case is governed by G.L.1956 § 10-3-2, which provides that “in the event the insured exercises the option to arbitrate, * * * the provisions of this chapter shall apply and be the exclusive remedy available to the insured.”

The issue of whether a dispute is arbitrable is a question of law that this Court reviews de novo.”

[w]hen uncertainty exists about whether a dispute is arbitrable, this Court, like the United States Supreme Court, ‘has enunciated a policy in favor of resolving any doubt in favor of arbitration

we find that this argument has been waived because it was not pled in defendants’ answer.

the right to arbitration “can be waived when a party ‘manifests a willingness, if not a desire, to have the courts resolve the controversy.’

The parties acknowledge that because their transactions involved interstate commerce, the Federal Arbitration Act (FAA) is applicable.

We are not persuaded that a reasonably prudent offeree would understand that by keeping the Dell computer he or she was agreeing to be bound by the terms and conditions agreement and retained, for a specified time, the power to reject the terms by returning the product.

Because we hold that the hearing justice properly denied the defendants’ motion to compel arbitration on the ground that the plaintiffs did not agree to be bound by the terms and conditions agreement, we need not discuss any of the alternative grounds the hearing justice offered for denying the defendants’ motion to compel arbitration.

In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, unless there is a mutually agreed upon provision to split costs equally, the drafting party, unless otherwise specified, is to pay certain fees and costs before the arbitration can proceed.

In addition to the monetary sanction described in subsection (a) of this section, the court may order any of the following sanctions against a drafting party that materially breaches an arbitration agreement pursuant to § 10-3-23(a) or § 10-3-24(a), unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust:

Having determined that no agreement to arbitrate exists between the parties, we conclude that Mueller, as an assignee of the contract between SBI and REECO, cannot compel the plaintiff to submit to arbitration. Accordingly, the plaintiffs appeal is sustained. We vacate the judgment of the Superior Court and remand the case for further proceedings consistent with this opinion.

Section 10-3-2 applies in cases in which the insurer demands that an insured arbitrate a claim.

Consequently, plaintiffs were barred by § 10-3-2 from opting out of arbitration and pursuing Heather’s claim in Superior Court.

For the reasons set forth in this opinion, we vacate the order of the Superior Court and remand the case to the Superior Court for entry of an order staying litigation pending arbitration proceedings.

Accordingly, we are of the opinion that defendants have waived their right to arbitration of count I of plaintiff’s amended complaint.

Conclusion For the foregoing reasons, we reverse the judgment of the Superior Court and remand the case for further proceedings not inconsistent with this opinion. The record shall be returned to the Superior Court.

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. This chapter also applies to arbitration agreements between employers and employees or between their respective representatives.

This chapter does not apply to insurance policies and every provision in any such policy requiring arbitration or restricting a party thereto or beneficiary thereof from enforcing any right under it by usual legal proceedings in ordinary tribunals or limiting the time to do so is void and unenforceable.

However, nothing in this chapter may be deemed to impair the enforcement of or invalidate a contractual provision for arbitration entered into between insurance companies.

If there is doubt whether a case should be resolved by traditional judicial means or by arbitration, arbitration will prevail.

On application of a party showing an agreement described in § 21-25A-1 , and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.

This chapter applies only to agreements made subsequent to June 30, 1971.

Since there is a dominant policy favoring arbitration, however, waiver cannot be lightly inferred. Id. The question whether one has waived one’s right to arbitrate turns on the significance of the action taken in a judicial forum; this question is one for a court to decide. Id. Courts apply a two-part test for deciding whether arbitration has been waived. There must be (1) conduct or activity inconsistent with the right to arbitration and (2) prejudice to the party claiming waiver.

The trial court found that defendants’ pretrial activity had not been extensive. Our review of the record convinces us that the trial court’s determination was correct, and we therefore hold that defendants did not waive their right to arbitrate.

This approach under South Dakota’s version of the Uniform Arbitration Act is consistent with the United States Supreme Court’s reading of the FAA in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006). Buckeye held that “[f]irst, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.”

We only have “such appellate jurisdiction as may be provided by the Legislature[,]” S.D. Const. art. 5, § 5, and without such authority provided by statute to review an order compelling arbitration, we conclude that an interlocutory order as the one at hand is not appealable as a matter of right.

The arbitration agreement between hospitals or physicians and patients shall contain the following provision in twelve-point boldface type immediately above the space for signature of the parties: The agreement to arbitrate is not a prerequisite to health care or treatment. By signing this contract you are agreeing to have any issue of medical malpractice decided by neutral arbitration and you are giving up your right to a jury or court trial.

(a) A written agreement to arbitrate is valid and enforceable if the agreement is to arbitrate a controversy that: (1) exists at the time of the agreement; or (2) arises between the parties after the date of the agreement. (b) A party may revoke the agreement only on a ground that exists at law or in equity for the revocation of a contract.

(a) This chapter does not apply to: (1) a collective bargaining agreement between an employer and a labor union; (2) an agreement for the acquisition by one or more individuals of property, services, money, or credit in which the total consideration to be furnished by the individual is not more than $50,000, except as provided by Subsection (b); (3) a claim for personal injury, except as provided by Subsection (c); (4) a claim for workers' compensation benefits; or (5) an agreement made before January 1, 1966. (b) An agreement described by Subsection (a)(2) is subject to this chapter if: (1) the parties to the agreement agree in writing to arbitrate; and (2) the agreement is signed by each party and each party's attorney. (c) A claim described by Subsection (a)(3) is subject to this chapter if: (1) each party to the claim, on the advice of counsel, agrees in writing to arbitrate; and (2) the agreement is signed by each party and each party's attorney.

A court may not enforce an agreement to arbitrate if the court finds the agreement was unconscionable at the time the agreement was made.

An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract. The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

This chapter applies to any agreement to arbitrate made on or after May 6, 2002. This chapter applies to any agreement to arbitrate made before May 6, 2002, if all the parties to the agreement or to the arbitration proceeding agree on the record.

If a provision in a veterinarian non-compete agreement entered into on or after May 6, 2026, requires that the parties to a dispute arising under the veterinarian non-compete agreement resolve the dispute in a forum outside of this state, the provision: is void and unenforceable; and is considered against the public policy of this state.

A provision in a construction agreement requiring a dispute arising under the agreement to be resolved in a forum outside of this state is void and unenforceable as against the public policy of this state if: one of the parties to the agreement is domiciled in this state; and work to be done and the equipment and materials to be supplied under the agreement involves a construction project in this state.

As used in this section, "construction agreement" means a construction contract, subcontract, or purchase order for the design, construction, installation, or repair of an improvement to real property between a: construction manager; general contractor; subcontractor; sub-subcontractor; supplier; or any combination of the persons described under Subsections (1)(a) through (e) .

This section applies to a construction agreement executed, renewed, or materially modified on or after May 5, 1997.

If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract. This article also applies to arbitration agreements between employers and employees or between their respective representatives unless otherwise provided in the agreement; provided, however, that nothing in this chapter shall be construed to create any right to arbitration with respect to any controversy regarding the employment or terms and conditions of employment of any officer or employee of the Commonwealth.

On application of a party showing an agreement described in § 8.01-581.01 , and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration. However, if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue of the existence of an agreement and shall order arbitration only if found for the moving party.

Where an arbitration in a Virginia-connected transaction requires, either expressly or through application of state or federal law or the rules of the arbitration provider, that the drafting party pay certain fees and costs before the arbitration can proceed, such drafting party shall (i) be in material breach of the arbitration agreement; (ii) be in default of the arbitration; and (iii) be deemed to have waived the right to compel such arbitration if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date.

"High-volume arbitration service provider" means any arbitration service provider that conducts more than 100 arbitrations per calendar year that arise from a pre-dispute arbitration agreement involving a Virginia-connected transaction.

Nothing in this article shall be construed to preempt federal law governing arbitration but shall be construed to be consistent with such law to the maximum extent permitted. If any provision of this section is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

The forum for any arbitration proceedings required in such a contract entered into on or after July 1, 1991, shall be in this Commonwealth. If the contract provides for arbitration proceedings outside the Commonwealth, such provision is unenforceable and arbitration proceedings shall be in the county or city where the work is to be performed, unless the parties agree to conduct the proceedings elsewhere within the Commonwealth. The enforceability of the remaining provisions of the arbitration agreement and the method of selecting a forum for the conduct of the arbitration proceedings are as provided in this Code, the Federal Arbitration Act, and any applicable rules of arbitration.

The Federal Arbitration Act contains "a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of [§ 2 of the Act] is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act."

The language of the contract determines whether a particular dispute is arbitrable.

We also conclude that Brush Arbor did not waive its right to seek arbitration.

C. If the drafting party materially breaches the arbitration agreement and is in default under subsection A, the employee or consumer may do either of the following: 1. Withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction; or 2. Compel arbitration in which the drafting party shall pay reasonable attorney fees and costs related to the arbitration. If the consumer proceeds with an action in a court of appropriate jurisdiction, the court shall impose sanctions on the drafting party.

C. The requirements of this article shall be incorporated as material terms of any pre-dispute arbitration agreement transacted pursuant to Virginia contract law.

The arbitration clause here states that “[a]ny controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration . . . .” We have described such language as “very broad in its coverage.” Id. at 426. “Broad language of this nature covers contract-generated or contract-related disputes between the parties however labeled.” McMullin v. Union Land & Mgmt. Co., 242 Va. 337, 341 (1991).

The straightforward question we must resolve is whether the parties’ disagreement over the interpretation of Article 12, as well as the application of the doctrine of impossibility to this article of the contract, are “controvers[ies] or claim[s] arising out of or relating to this contract, or the breach thereof.” The answer is plainly yes. These are “controvers[ies] arising out of or relating to” this contract, and, therefore, an arbitrator must resolve them. We hold that the circuit 4 court erred in concluding otherwise.

We will reverse the judgment of the circuit court and remand for entry of an order directing the parties to proceed to arbitration.

A. Where a party whose principal place of business is in the Commonwealth enters into a contract on or after July 1, 1997, to design, manage construction of, construct, alter, repair, maintain, move, demolish, or excavate, or supply goods, equipment, or materials for the construction, alteration, repair, maintenance, movement, demolition, or excavation of a building, structure, appurtenance, road, bridge, or tunnel which is physically located in the Commonwealth, any cause of action arising under such contract may be brought in the jurisdiction where the construction project is located, or such other jurisdiction where the venue is proper under the provisions of this chapter. Any provision in the contract mandating that such action be brought in a location outside the Commonwealth shall be unenforceable.

Our resolution of this appeal is governed in part by the Federal Arbitration Act because the Master Settlement Agreement, as modified by the October 2000 letter, "involved interstate commerce." Thus, we must apply the federal substantive law to determine whether the parties must submit to binding arbitration as required by the contract.

However, in determining whether a contractual dispute exists that is subject to arbitration, we must review the language contained in the Master Settlement Agreement and the October 2000 modification to ascertain the meaning of these documents, and in making this determination, we must apply the substantive contract law of this Commonwealth. The question "[w]hether a party agreed to arbitrate a particular dispute is an issue for judicial determination to be decided as a matter of contract." Johnson v. Circuit City Stores, Inc., 148 F.3d 373, 377 (4th Cir. 1998); accord AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648-49 (1986); Arrants v. Buck, 130 F.3d 636, 640 (4th Cir. 1997). In making this determination, the courts should apply "ordinary state-law principles that govern the formation of contracts." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)

Thus, reiterating, we hold that the circuit court did not err in denying the defendants' request to arbitrate because, applying the federal law and the Federal Arbitration Act, we conclude with positive assurance that no legally cognizable dispute exists that would subject the litigants to arbitration and, thus, there is nothing for an arbitrator to decide.

B. After a consumer meets the filing requirements necessary to initiate an arbitration with a high-volume arbitration service provider, the arbitration provider shall immediately provide an invoice for any fees and costs required before the arbitration can proceed to all parties to the arbitration. The invoice shall (i) be provided in its entirety; (ii) state the full amount owed and the date that payment is due; (iii) include estimated future charges through the completion of the arbitration; and (iv) be sent to all parties by the same method of delivery on the same day. Absent an express provision in the arbitration agreement stating the number of days within which the parties to the arbitration must pay any required fees or costs, the arbitration provider shall issue all invoices to the parties as due upon receipt.

B. Upon a determination that a high-volume arbitration service provider has failed to comply with the provisions of this article, the State Corporation Commission may impose a civil penalty in an amount not to exceed $10,000 per violation.

(1) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of contract. (2) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. (3) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

(2) Before a controversy arises that is subject to an agreement to arbitrate, the parties to the agreement may not: (a) Waive or vary the requirements of RCW 7.04A.050(1), 7.04A.060(1), 7.04A.080, 7.04A.170 (1) or (2), 7.04A.260, or 7.04A.280; (b) Unreasonably restrict the right under RCW 7.04A.090 to notice of the initiation of an arbitration proceeding; (c) Unreasonably restrict the right under RCW 7.04A.120 to disclosure of any facts by a neutral arbitrator; or (d) Waive the right under RCW 7.04A.160 of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under this chapter.

The Restatement position concerning severance of unconscionable provisions should also apply in cases where courts are confronted with substantively unconscionable *359 provisions in employment arbitration agreements. 14 Accord Helstrom v. N. Slope Borough, 797 P.2d 1192, 1200 (Alaska 1990); Faber v. Menard, Inc., 367 F.3d 1048, 1054 (8th Cir. 2004); Gannon v. Circuit City Stores, Inc., 262 F.3d 677, 682-83 (8th Cir. 2001); Spinetti v. Serv. Corp. Int’l, 324 F.3d 212, 221-22 (3d Cir. 2003); Parilla v. IAP Worldwide Servs. VI, Inc., 368 F.3d 269 , 288 (3d Cir. 2004). Application of this rule facilitates the accomplishment of important federal and state public policies favoring arbitration of disputes. See Gannon, 262 F.3d at 682 (noting that if courts declared an entire arbitration agreement invalid even if the agreement contained only one invalid provision, such a result would discourage parties from arbitrating their disputes). ¶44 Nonetheless, we acknowledge that in instances where an employer engages in an “insidious pattern” of seeking to tip the scales in its favor in employment disputes by inserting numerous unconscionable provisions in an arbitration agreement, courts may decline to sever the unconscionable provisions. Ingle, 328 F.3d at 1180 . In this case, however, Adler and Fred Lind Manor’s arbitration agreement contains just two substantively unconscionable provisions. The primary thrust of their agreement is the agreement to arbitrate. Consequently, we can sever the unconscionable attorney fees and limitations provisions *360 without disturbing the primary intent of the parties to arbitrate their disputes.

We reject Adler’s claims that the WLAD entitles him to a judicial forum, that Fred Lind Manor has waived its right to arbitrate this dispute, and/or that Fred Lind Manor should be equitably estopped from asserting arbitration. However, we conclude that the attorney fees and limitations provisions of the arbitration agreement are substantively unconscionable but sever these provisions from the agreement thus preserving the parties’ intent to arbitrate their disputes. We remand to the trial court for determination, consistent with this opinion, of Adler’s claims of procedural unconscionability, including whether Adler implicitly waived his right to a jury trial and the substantive conscionability of the fee-splitting provision.

(4) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

(3) The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

(3) This chapter does not apply to any arbitration governed by chapter 7.06 RCW. (4) This chapter does not apply to any arbitration agreement between employers and employees or between employers and associations of employees.

The aggrieved party must deliver to the other party a written notice of his/her/its intention to seek arbitration no later than 180 days after the event that first gives rise to the dispute. Otherwise his/her/its rights shall be irrevocably waived. The dispute shall be decided by one arbitrator selected by mutual agreement of the parties, or absent agreement, in accordance with the Rules. The arbitrator’s fee and other expenses of the arbitration process shall be shared equally. The parties shall bear their own respective costs and attorneys fees.

(3) The parties to an agreement to arbitrate may not waive or vary the requirements of this section or RCW 7.04A.030 (1)(a) or (2), 7.04A.070, 7.04A.140, 7.04A.180, 7.04A.200 (3) or (4), 7.04A.220, 7.04A.230, 7.04A.240, 7.04A.250 (1) or (2), 7.04A.901, 7.04A.903, section 50, chapter 433, Laws of 2005, or section 51, chapter 433, Laws of 2005. [ 2005 c 433 s 4.]

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part of the contract, or an agreement in writing between 2 or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable except upon such grounds as exist at law or in equity for the revocation of any contract.

This chapter shall not apply to contracts between employers and employees, or between employers and associations of employees, except as provided in s. 111.10 , nor to agreements to arbitrate disputes under s. 292.63 (6s) or 230.44 (4) (bm) .

The challenge to the validity of the arbitration provision is to be decided by the courts, even though the arbitration provision in the instant contract provides that the validity of the arbitration provision is to be decided in arbitration. Indeed, Wisconsin Auto Title Loans does not argue that the validity of the arbitration provision must be decided in arbitration.

We hold that the arbitration provision of the loan agreement between Wisconsin Auto Title Loans and the borrower is unconscionable.

Second, arbitration provisions are presumed to be valid in Wisconsin. 13 An arbitration provision, *531 however, may be invalid for reasons that apply to all contract provisions.

The dispositive issue in this case is whether the arbitration provision in the loan agreement between Wisconsin Auto Title Loans and the borrower is unconscionable and, therefore, unenforceable.

Fourth, a party seeking to invalidate a provision in a contract (here the borrower) has the burden of proving facts that justify a court's reaching the legal conclusion that the provision is invalid.

Our application of state contract law to invalidate the arbitration provision at issue in the instant case is consistent with § 2 of the Federal Arbitration Act. Indeed, the United States Supreme Court has expressly stated that " [generally applicable con *557 tract defenses, such as fraud, duress, or unconsciona-bility, may be applied to invalidate arbitration agreements without contravening § 2 ... ." 65 Our contract law on unconscionability does not single out arbitration provisions. 66 We therefore conclude that the Federal Arbitration Act does not preempt our unconscionability analysis.