Mortgage Servicing and Loan Modifications: 11.9.3a.2 Does the Court or Arbitrator Decide Whether a Clause Is Enforceable?
A preliminary matter in any challenge to the enforceability of an arbitration clause is whether the enforceability determination is to be made by a court or by the arbitrator. In Rent-A-Center, West, Inc. v. Jackson,689 the Supreme Court held that, “ordinarily,” issues about whether parties have agreed to a valid arbitration clause are for a court—not an arbitrator—to decide.