[brief] THE TRIAL COURT’S FINDINGS ON ARBITRABILITY WERE INCORRECT (Pa7)  Though the trial court wrongly determined whether a valid arbitration clause existed, it nonetheless held that the Agreement’s Arbitration Clause’s reference to the [...] (“[...]”) rules means the question of arbitrability is for an arbitrator.  This is incorrect.  The law “presumes that a court, not an arbitrator, decides any issue concerning arbitrability. ”  Morgan v. Sanford Brown Inst., 225 N.J. 289, 303 (2016); see Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, 809 F.3d 746, 756 (3d Cir. 2016) (“It is presumed that courts must decide questions of arbitrability…”).  This is because these threshold determinations are “’a necessary prerequisite’ in fulfilling the court’s gatekeeping function. ”  MZM Constr. Co., Inc. v. New Jersey Bldg. Laborers Statewide Benefit Funds, 974 F.3d 386, 398 (3d Cir. 2020) (citation omitted).  The burden of overcoming this presumption is “onerous. ”  Chesapeake, 809 F.3 at 756.  The presumption can only be overcome when there is “‘clea[r] and unmistakabl[e]’ evidence” that the parties “agreed to arbitrate arbitrability. ”  First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (quoting AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649 (1986)).  “Silence or ambiguous contractual language is insufficient to rebut the presumption. ”  Opalinski v. Robert Half Int’l Inc., 761 F.3d 326, 331 (3d Cir. 2014) (quotation omitted).  Even under the FAA, “[judges] retain the primary power to decide questions of whether the parties mutually assented to a contract containing or incorporating a delegation provision. ”  Cottrell v. Holtzberg, 468 N.J. Super. 59, 70 (App. Div. 2021).  Rather, a “judicial forum is generally appropriate” to determine arbitrability and only once “a court makes a threshold decision that a valid agreement to arbitrate exists, it then considers the next issue, whether there is ‘clear and unmistakable’ evidence that the parties intended to delegate arbitrability questions to the arbitrator. ”  Id. at 71 (citing Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524, 530 (2019)).  The trial court’s statement that reference to the [...] rules indicates mutual assent that arbitrators determine arbitrability is not “clear and unmistakable” and does not satisfy the “onerous” presumption.  Here, as noted above, there is no valid arbitration agreement in the Agreement, nor is there a delegation clause, or determination on arbitrability, anywhere in the Agreement.  Without “clear and unmistakable” evidence, a judicial forum is the only proper venue to make that determination.  Accordingly, New Jersey has never “specifically addressed the issue” in a published decision and has often times ruled that mere reference to the [...] is not sufficient to satisfy the “clear and unmistakable” requirement.  Schmidt v. Laub, 2020 WL 2130931 (App. Div. May 5, 2020); see also e.g. Ames v. Premier Surgical Ctr., L.L.C, 2016 WL 3525246, at *3 (App. Div. June 29, 2016) (though defendants argued that arbitrability is assigned “to an arbitrator via reference to the [...] rules, such delegation is not ‘clearly and unmistakably established’ by the language in the agreement…[t]o the extent defendants assert a valid delegation clause exists, we conclude any such delegation clause fails to comport” with New Jersey law.).  Accordingly, to the extent that the issue of arbitrability is relevant, any such question should be determined by the court.