Notice Defense Is Subject to Arbitration, Not "Predicate Requirement" to Enforcement of Arbitration Clause

The contract in this case stated a time limit on claims -- 21 days after occurrence of the event giving rise to the claim (fairly typical AIA clause).   The subcontractor argued that the arbitration clause did not apply because (1) the contractor failed to comply with the 21 day notice rule and (2) the 21 day notice rule was a "condition precedent" to enforcement of the arbitration clause.Division 1 held that the notice defense is for the arbitrator to decide and was not a condition precedent.  In distinguishing the Mike Johnson case, however, the Court seemed to suggest that the parties are generally free to rewrite the arbitration clause to make the 21 day notice rule a true condition precedent (and thereby preserve the notice issue for judicial -- not arbitral - resolution).Copy of opinion available here Download file