Enforcing Construction Arbitration is Not Always as Simple as it Seems

Frantz Ward

Parties to a construction contract requiring arbitration of disputes frequently disagree about whether a particular dispute is covered by the arbitration clause.  Add to this questions of who decides which issues, what law applies, what laws are preempted, and injunctive relief, and it becomes clear that enforcing arbitration agreements is not always as simple as it seems.

Challenges to the enforceability of a contract as a whole (that also contains an arbitration clause) is for the arbitrator to decide, while challenges to the enforceability of the arbitration clause itself is for the courts to decide.

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