When Parties Dispute Whether a Contract Containing an Arbitration Agreement Expired - Who Decides - the Court or the Arbitrator?
<p>Courts are required to enforce arbitration agreements according to their terms. But what if the parties dispute whether a contract containing an arbitration agreement expired? Does the court or the arbitrator decide the question of expiration?</p>
<p>Let's assume the contract gives the arbitration panel broad powers but is moot specifically when it comes to jurisdiction regarding contract &quot;expiration&quot;. Both parties agree that at one point in time a valid arbitration agreement existed.</p>
<p>How would the courts in NJ rule?</p>

<h2>The court is likely to refer it to the arbitrator to decide</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<p>Australia's laws follow the model UN codes as do most jurisdictions so this should be pretty universal.</p>
<p>There are two basic principles going to jurisdiction in an arbitration agreement: the severability principle and the competence-competence principle.</p>
<p>The severability principle is that an arbitration agreement is a separate (severable) contract from any other agreement between the parties even if they are in the same document. So, the fact that the contract has expired, or is even void, is irrelevant - the arbitration agreement stands or falls on its own. For the arbitration agreement to have expired, the expiration clause would need to be explicit that it includes the arbitration clause.</p>
<p>The competence-competence principle is that the arbitrator has the authority (competence 1) to decide if they are allowed to be the arbitrator (competence 2). So, at first instance, it is the job of the arbitrator to decide whether there is or isn't a valid arbitration agreement and, therefore, whether they can continue with the arbitration. The parties are allowed to make submissions on this but only until the statement of defence is submitted. A decision by an arbitrator that they <em>do</em> have jurisdiction is one of the few things that a court can review, but only if referred to the court within 30 days.</p>
<p>Therefore, unless the arbitration agreement is unenforcable on its face, the court will tell the parties to follow it.</p>

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