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The terms assert that questions about whether a dispute must go to arbitration, including claims that the arbitration agreement itself is unenforceable or unconscionable, must be decided by an arbitrator rather than a court, with the specific exception that courts have exclusive authority over class and mass action waiver disputes.
This analysis describes what Uber's agreement states, permits, or reserves. It does not constitute a legal determination about enforceability. Regulatory applicability and practical outcomes may vary by jurisdiction, enforcement context, and individual circumstances. Read our methodology
This provision delegates threshold arbitrability determinations, including unconscionability challenges to the arbitration agreement itself, to the arbitrator rather than a court. The carve-out preserving court authority over class and mass action waiver disputes is operationally significant, as it creates a bifurcated authority structure between arbitrators and courts.
Interpretive note: Enforceability of delegation clauses in adhesion consumer contracts varies by circuit and may be subject to state unconscionability challenges depending on jurisdiction and FAA preemption analysis.
Under this clause, a user who challenges the validity or enforceability of the arbitration agreement must raise that challenge before an arbitrator rather than a court, except for challenges specifically directed at the class or mass action waivers. The agreement asserts that arbitrators, not courts, determine whether the arbitration terms apply to a given dispute.
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"Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including without limitation any claim that all or any part of this Arbitration Agreement is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues, including issues relating to whether these Terms are applicable, unconscionable, or illusory and any defense to arbitration, including without limitation waiver, delay, laches, or estoppel. However, only a court of competent jurisdiction, and not an arbitrator, shall have the exclusive authority to resolve any and all disputes concerning the Class Action Waiver and Mass Action Waiver.Excerpt from Uber's Terms of Use
REGULATORY LANDSCAPE: Delegation clauses have been the subject of significant judicial scrutiny under the FAA. The U.S. Supreme Court has recognized delegation clauses as enforceable where clearly and unmistakably agreed to, but courts retain authority to review delegation clauses for unconscionability as a standalone challenge. The FAA governs interpretation per the document's express terms. GOVERNANCE EXPOSURE: High. Delegation of unconscionability determinations to an arbitrator substantially limits the judicial review available to users challenging the arbitration agreement. The bifurcation of authority, with arbitrators resolving arbitrability and courts resolving class waiver enforceability, creates procedural complexity in contested proceedings. JURISDICTION FLAGS: Courts in the Ninth Circuit have addressed delegation clause enforceability in consumer adhesion contracts and may scrutinize whether the delegation was sufficiently clear and unmistakable. State courts in California and other jurisdictions have at times declined to enforce delegation clauses in consumer contracts under state unconscionability doctrine, though FAA preemption complicates this analysis. CONTRACT AND VENDOR IMPLICATIONS: Legal teams should assess whether the delegation clause, combined with the retroactive scope of the arbitration agreement, creates litigation risk in jurisdictions where courts have been skeptical of broad delegation in adhesion consumer contracts. The bifurcated authority structure between arbitrators and courts on class waiver issues requires coordinated legal strategy in multi-front disputes. COMPLIANCE CONSIDERATIONS: Compliance teams should monitor circuit court and state appellate decisions on delegation clause enforceability, particularly post-Supreme Court decisions addressing the scope of FAA preemption on state unconscionability challenges to delegation clauses.
This provision delegates threshold arbitrability determinations, including unconscionability challenges to the arbitration agreement itself, to the arbitrator rather than a court. The carve-out preserving court authority over class and mass action waiver disputes is operationally significant, as it creates a bifurcated authority structure between arbitrators and courts.
Under this clause, a user who challenges the validity or enforceability of the arbitration agreement must raise that challenge before an arbitrator rather than a court, except for challenges specifically directed at the class or mass action waivers. The agreement asserts that arbitrators, not courts, determine whether the arbitration terms apply to a given dispute.
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