By Gilbert Samberg ( June 22, 2018, 5:45 PM EDT) -- "Gateway" arbitration issues, including the validity, enforceability and scope of an arbitration agreement, are presumptively to be decided by a court, rather than by an arbitrator. However, such gateway issues may be "delegated" to an arbitrator — for example, AT&T Technologies v. Communications Workers[1] — if the pertinent arbitration agreement clearly and unmistakably manifests the parties' intention to do so. See also First Options of Chicago v. Kaplan;[2] Howsam v. Dean Witter Reynolds;[3] Greentree Financial v. Bazzle.[4] But what if the arbitration agreement is in doubt? Could such a purported delegation be enforced if one of the concerned parties did not execute the arbitration agreement in question? Spoiler alert: Arguably not....
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