Who Decides the What Issue Is Subject to Arbitration: A Judge or Arbitrator?

It is, as the Second District Court of Appeals of Florida said, a “rather arcane”issue: who decides whether a dispute is subject to an arbitration provision – a judge or an arbitrator.  Under the facts presented, the appellate court concluded that because the contract (a clickwrap agreement on AirBNB’s website)  “did not provide clear and unmistakable evidence that only the arbitrator could decide the issue of arbitrability” the issue was one for the judge.

The case is Doe v. Natt and AirBNB, Inc., Case No. 2D19-1383 (Fla. Ct. App. March 25, 2019).  The court reached a result different than several other intermediate appellate courts in Florida and thus is likely to go up on appeal.