Is this arbitration clause enforceable in Utah, and who decides whether it exists?
Under the Utah Uniform Arbitration Act an agreement contained in a record to submit any existing or subsequent controversy to arbitration is valid, enforceable and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract. The court decides whether an agreement to arbitrate exists or a controversy is subject to it; the arbitrator decides whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable (§ 78B-11-107). The Act applies to agreements to arbitrate made on or after May 6, 2002, and to earlier agreements only if all parties agree on the record (§ 78B-11-104).
The trap
A challenge to the contract as a whole goes to the arbitrator, not the court: § 78B-11-107 reserves only existence and scope of the arbitration agreement for the court. For a Utah construction project with a Utah-domiciled party, a clause requiring the dispute to be resolved in a forum outside Utah is void (§ 13-8-3, which defines a construction agreement as one between a construction manager, general contractor, subcontractor, sub-subcontractor, supplier or any combination of them, and reaches only agreements executed, renewed or materially modified on or after May 5, 1997), and for a veterinarian non-compete entered on or after May 6, 2026 an out-of-state forum provision is void (§ 34-51-201). Taking the existence question to court does not stop the arbitration: § 78B-11-107 lets the arbitration proceeding continue pending the court's final resolution of the issue unless the court orders otherwise. Federal Arbitration Act preemption was not researched for this rule.
7 authorities
- statuteUtah Code § 78B-11-107enactment date not established
The words that state the rule
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.
- statuteUtah Code § 78B-11-104enactment date not established
The words that state the rule
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.
- statuteUtah Code § 34-51-201enactment date not established
The words that state the rule
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.
- statuteUtah Code § 13-8-3enactment date not established
The words that state the rule
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.
- statuteUtah Code § 13-8-3enactment date not established
The words that state the rule
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) .
- statuteUtah Code § 13-8-3enactment date not established
The words that state the rule
This section applies to a construction agreement executed, renewed, or materially modified on or after May 5, 1997.
- statuteUtah Code § 78B-11-107enactment date not established
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.