Who decides if the matter is to be arbitrated?
One would think that if one wanted to help the parties achieve an inexpensive speedy arbitration, one would avoid forcing the parties into expensive pre-arbitration litigation. But the CAR form makes another election that is not helpful to those who select arbitration. The CAR form is silent on the issue of who determines arbitration. The cases instruct that, absent agreement between the parties, it is up to a court to determine if the claim is arbitrable.14 If the parties want to submit the question of arbitrability to the arbitrator, they must therefore specifically so provide. Because the CAR form contract is silent on this point, if the parties have any dispute about the arbitrability of the claim, they will first have to go to court to seek a ruling on arbitrability. Issues about arbitrability can arise in many different ways. For example, a party may contend that the specific type of claim asserted by a party is beyond the claims covered by the provision. A form designed to encou
