Mandatory arbitration clauses have proliferated in online consumer contracts in recent years. And with their increased use, courts have been confronted with whether the terms of those clauses, which often incorporate the arbitration rules of an arbitration provider, should be binding. In particular, much attention has been given to whether the courts or the arbitration provider’s arbitrator have the authority to resolve the gateway issue of whether a valid agreement to arbitrate exists.

A recent case from California resolved this issue based upon the differing arbitration provisions contained in the rules of two of the nation’s largest arbitration providers.

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