Marketech v. Process Service

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MARKETECH INTERNATIONAL CORPORATION USA, INC., Petitioner,

v.

PROCESS SERVICE SPECIALISTS, L.L.C., Respondent.

No. 1 CA-SA 25-0039
FILED 10-23-2025

Appeal from the Superior Court in Maricopa County
No. CV2024-018710
The Honorable Erik Thorson, Judge

VACATED AND REMANDED

COUNSEL

Fennemore Craig, P.C., Phoenix
By Timothy J. Berg (argued), John Randall Jefferies,
Stacy Porche, Kaitlyn Smith
Counsel for Petitioner

Osborn Maledon P.A., Phoenix
By Thomas L. Hudson, Eric M. Fraser (argued), Alexandria N. Karpurk
Co-Counsel for Respondent

Holden Willits PLC, Phoenix
By Michael J. Holden, Ian L. Balitis
Co-Counsel for Respondent

Jones Walker LLP, Houston, TX
By Neal Sweeney, Tiffany C. Raush, William J. Shaughnessy
Co-Counsel for Respondent
 MARKETECH v. PROCESS SERVICE
Opinion of the Court

OPINION

Presiding Judge Brian Y. Furuya delivered the opinion of the Court, in
which Chief Judge Randall M. Howe joined. Judge Angela K. Paton
dissented.

F U R U Y A, Judge:

¶1 Petitioner Marketech International Corporation USA, Inc.
(“Marketech”) seeks special action review of the superior court’s order
compelling arbitration and denying its motion for reconsideration.

¶2 This case calls upon us to decide whether the court may
compel arbitration by enforcing an arbitration clause contained within an
illegal construction contract that, barring applicability of any exceptions,
may be void because of a party’s violation of A.R.S. Section 32-1151. As
further explained below, contracts that are illegal and void because of such
violations cannot be used to compel an unwilling party to arbitrate the
issues of that illegality. Instead, the court must resolve any issues regarding
illegality in the first instance and may compel arbitration of further issues
only upon a determination that the arbitration clause is not void. Because
the court improperly delegated the preliminary determination as to
illegality and voidness over Marketech’s objection to the arbitration, we
accept special action jurisdiction, vacate the court’s order, and remand for
an evidentiary hearing to resolve those issues in the first instance.

FACTS AND PROCEDURAL HISTORY

¶3 On July 28, 2022, Marketech entered into a Master Services
Agreement (“the Agreement”) with Process Service Specialists, L.L.C.
(“PSS”) in connection with the construction of a manufacturing facility. At
the time the parties executed the Agreement, PSS was not licensed as a
contractor in Arizona. Nevertheless, PSS submitted a $28 million proposal
to Marketech on August 4, 2022. Four days later, PSS obtained its
contractor’s license on August 8, 2022, and on September 15, 2022, the
parties executed their first purchase order.

¶4 A dispute arose between the parties concerning the
performance of the construction work. After mediation failed, PSS filed a
demand with the American Arbitration Association pursuant to the terms

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Opinion of the Court

of the Agreement, asserting claims exceeding $50 million. Marketech filed
a complaint in the superior court and moved to stay the arbitration, arguing
arbitration could not be compelled under the Agreement because PSS
lacked legal capacity to contract under Arizona’s licensing statutes at the
time of formation. Marketech’s argument was directed at both the
Agreement as a whole and also specifically to the arbitration clause
contained within it. PSS then moved to stay litigation and compel
arbitration. After briefing, the court granted PSS’s motion, reasoning (1)
“the arbitrator must decide the contract’s validity in the first instance,” (2)
Marketech failed to specifically challenge the delegation clause, and (3)
Arizona’s licensing statutes do not bar PSS from initiating arbitration.

¶5 Marketech filed this special action challenging that ruling.
While it does not dispute that the Federal Arbitration Act (“FAA”) would
apply if the Agreement were validly formed, it argues that PSS’s lack of a
contractor’s license at the time the Agreement was signed rendered it void
at inception.

DISCUSSION

I. We Accept Special Action Jurisdiction.

¶6 The Rules of Procedure for Special Actions guide us in
accepting or declining special action jurisdiction and “should [be] use[d]
and construe[d] . . . in a just manner that avoids unnecessary delay and
expense.” Ariz. R.P. Spec. Act. 1(c). Special action jurisdiction “is ‘highly
discretionary[.]’” Yauck v. W. Town Bank & Tr., ___ Ariz. ___, ___ ¶ 12, 568
P.3d 386, 390 (App. 2025) (citing Prosise v. Kottke, 249 Ariz. 75, 77 ¶ 10 (App.
2020)); see also Ariz. R.P. Spec. Act. 12(a) (“Whether to accept jurisdiction of
an appellate special action is within the court’s discretion . . . . In accepting
or declining jurisdiction, the court is determining whether remedy by
appeal is equally plain, speedy, and adequate.”). In the exercise of that
discretion, we are directed to consider, among other factors, whether the
petition for special action asks us to resolve questions “the resolution of
which will materially advance the efficient management of the case, other
than issues presented by ordinary dispositive motion practice[.]” Ariz. R.P.
Spec. Act. 12(b)(7); see also State Comp. Fund v. Superior Court, 190 Ariz. 371,
374 (App. 1997) (“Special action jurisdiction is appropriate because . . .
resolution of the issues will avoid undue expense and delay for both the
litigants and others.”).

¶7 Although A.R.S. Section 12-2101.01(A)(1) allows appeals from
orders denying arbitration, it does not mention orders granting

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arbitration—which our supreme court has interpreted as an intent to
minimize interlocutory review. See S. Cal. Edison Co. v. Peabody W. Coal Co.,
194 Ariz. 47, 52–53 ¶¶ 16–17 (1999). Thus, under normal circumstances, an
order compelling arbitration is not immediately appealable. But though
such orders may be reviewed on appeal after a final judgment confirms an
award following full arbitration, see Roeder v. Huish, 105 Ariz. 508, 510
(1970), nevertheless, the “general rule [prohibiting appeals from orders
compelling arbitration] provides little comfort in those cases in which there
are complex issues and in which a bona fide dispute exists over
arbitrability. In those instances, justice might be better served by pre-
arbitration resolution of arbitrability.” Peabody, 194 Ariz. at 53 ¶ 18.

¶8 This special action presents one such instance because it
concerns whether a party can be compelled to expend very substantial time
and resources arbitrating a dispute when the order to arbitrate is predicated
on a potentially illegal and void contract. Specifically, the parties here
agreed unequivocally at oral argument that PSS was unlicensed when the
Agreement was signed and that the Agreement concerns provision of
construction services. The question presented in the petition, therefore,
raises only the narrow legal issue regarding whether PSS’s lack of licensure
under A.R.S. Sections 32-1151 and -1153 rendered the arbitration clause
illegal and void. See State v. Bergin, 256 Ariz. 516, 521 ¶ 10 (App. 2023)
(“[Petition] raises a purely legal issue, making it particularly appropriate
for special-action review.”).

¶9 PSS argues against accepting jurisdiction, observing that an
arbitrator would be capable of deciding the issue of whether the Agreement
is illegal. That may be so, but capacity and ability of the arbitrator are not
the issue. Resolving this issue early via special action will materially
advance the efficient management of the case. See Ariz. R.P. Spec. Act.
12(b)(7). Accepting jurisdiction now will resolve who must decide the
threshold question of whether arbitration can be compelled at all in the face
of a likely illegal and void contract, before a costly, duplicative, and
unnecessary proceeding must be litigated to conclusion.

¶10 Citing the general principle established in Roeder and Peabody
that orders compelling arbitration are reviewable after the superior court
affirms the award, the dissent questions how this case is different from
other cases where orders compelling arbitration did not merit special action
review. But neither Roeder nor Peabody involved a court compelling
arbitration using an illegal or void contract as the foundation for its order.
In our view, justice is better served by requiring the court to resolve

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disputes as to the illegality and voidness of an arbitration contract before
compelling arbitration under that contract. Peabody, 194 Ariz. at 53 ¶ 18.

¶11 For these reasons, we exercise our discretion and accept
special action jurisdiction.

II. Where a Party Disputes the Existence of an Agreement to
Arbitrate, the Court, Not the Arbitrator, Must Decide Whether that
Agreement Exists.

¶12 We review the superior court’s decision to compel arbitration
de novo. Gray v. GC Servs., LP, 256 Ariz. 480, 484 ¶ 9 (App. 2023); see RLI
Ins. Co. v. Nat’l Constr. & Dev., Inc., 258 Ariz. 504, 507 ¶¶ 3–4 (App. 2024).

¶13 The FAA provides that a written arbitration agreement “shall
be valid, irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract[.]” 9 U.S.C. § 2. The
inquiry under Section 2—whether a valid arbitration agreement was
formed—is governed by state contract law. First Options of Chi., Inc. v.
Kaplan, 514 U.S. 938, 944 (1995). Further, 9 U.S.C. Section 4 provides that
where “the making of the arbitration agreement . . . [is] in issue,” the court
must proceed summarily to decide that question before ordering
arbitration. See id. at 944; Henry Schein, Inc. v. Archer & White Sales, Inc., 586
U.S. 63, 69 (2019) (“[B]efore referring a dispute to an arbitrator, the court
determines whether a valid arbitration agreement exists.”).

¶14 Arizona follows this same rule. “On motion of a person
alleging that an arbitration proceeding has been initiated or threatened but
that there is no agreement to arbitrate, the court shall proceed summarily to
decide the issue.” A.R.S. § 12-3007(B) (emphasis added); see also, Gray, 256
Ariz. at 484 ¶ 9 (“When addressing whether the parties agreed to arbitrate
a certain matter, courts generally apply state-law principles governing
contract formation.”); Escareno v. Kindred Nursing Ctrs. W., L.L.C., 239 Ariz.
126, 129 ¶ 7 (App. 2016) (“The fundamental prerequisite to arbitration is the
existence of an actual agreement or contract to arbitrate.”); Brake Masters
Sys., Inc. v. Gabbay, 206 Ariz. 360, 364 ¶ 12 (App. 2003) (noting courts should
not presume arbitrability without “clear and unmistakable” evidence).

¶15 Here, the parties concede that an arbitration proceeding had
been initiated, and Marketech’s complaint to halt that arbitration alleged
that PSS’s lack of capacity to contract rendered the arbitration provision
void at inception. Accordingly, the superior court was obligated to resolve
the threshold issue of formation. A.R.S. § 12-3007(B). It failed to do so and
instead delegated that duty to the arbitrator. This was error.

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¶16 PSS and the superior court rely on Buckeye Check Cashing, Inc.
v. Cardegna, 546 U.S. 440 (2006), and Rent-A-Center, West, Inc. v. Jackson, 561
U.S. 63 (2010), to argue that challenges to contract validity must go to the
arbitrator. But both cases are inapposite because neither concerned illegal
or void contracts. In Buckeye, the parties did not dispute the existence of a
contract; the issue was whether the formed contract was enforceable. 546
U.S. at 444 n.1. In Rent-A-Center, the Court likewise noted that neither party
challenged the existence of the arbitration clause itself. 561 U.S. at 70 n.2. By
contrast, Marketech’s challenge is one of formation, not enforceability—it
alleges that no valid contract to arbitrate was ever formed because PSS’s
lack of a contractor’s license rendered the Agreement and its arbitration
clause illegal and void. Thus, we hold that this threshold issue must first be
resolved by the court before Marketech can be compelled to arbitrate.
See First Options, 514 U.S. at 944; Henry Schein, 586 U.S. at 69; A.R.S. § 12-
3007(B).

III. The Agreement is Illegal Under Arizona Law, But the Superior
Court Must Determine if the Agreement is Void.

¶17 Arizona law provides that:

It is unlawful for any person, firm, partnership, corporation,
association or other organization . . . to engage in the business
of, submit a bid or respond to a request for qualification or a
request for proposals for construction services as, act or offer
to act in the capacity of or purport to have the capacity of a
contractor without having a contractor’s license in good
standing in the name of the person, firm, partnership,
corporation, association or other organization as provided in
[Chapter 10 of Title 32, Arizona Revised Statutes].

A.R.S. § 32-1151. Notably, this prohibition applies not only to unlicensed
contractors who perform construction work, but also to those who
negotiate for, offer, or agree to provide construction services, or even
merely represent that they are authorized to do so. Id.; see also A.R.S. § 32-
1101(6). When a contract is deemed illegal under this statute, it is generally
void. See WB, The Bldg. Co., LLC v. El Destino, LP, 227 Ariz. 302, 308 ¶ 15
(App. 2011); Hunt v. Douglas Lumber Co., 41 Ariz. 276, 287–88 (1933)
(recognizing that predecessor statute to A.R.S. § 32-1151 rendered contracts
entered by unlicensed contractors void ab initio because the statute made
such contracts illegal); Northen v. Elledge, 72 Ariz. 166, 171–73 (1951) (same);
Miller v. Superior Court, 8 Ariz. App. 420, 423 (1968) (same); Pace v. Hanson, 6 Ariz. App. 88 (1967) (same); see also Yank v. Juhrend, 151 Ariz. 587, 590

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(App. 1986) (noting that generally, unless legislative intent specifies
otherwise, contracts made in contravention of a statute are illegal and void).
Further, an arbitration clause embedded in that void contract—and upon
which it is dependent for context—would be likewise void. See Austin v.
Austin, 237 Ariz. 201, 206 ¶ 12 (App. 2015); A.R.S. § 12-3006(A) (an
arbitration clause is not valid where grounds exist for revoking the contract
as a whole).

¶18 In this case, it is undisputed that PSS was unlicensed when it
negotiated for and signed the Agreement on July 28, 2022, and its eventual
licensure does not cure that initial defect. PSS counters that the Agreement
did not become operative until the first purchase order was executed in
September 2022—after it had acquired its contractor’s license. In other
words, PSS argues that formation did not occur until after it was licensed.
We disagree. It does not matter that the Agreement did not contain finalized
pricing or scope of work, or that construction had not yet begun. Arizona
law applies the stringent licensing requirement even at the proposal and
negotiation stage. A.R.S. § 32–1151; El Destino, 227 Ariz. at 308 ¶ 15. Because
PSS admits, at the very least, it negotiated to provide construction services
while unlicensed, the statutory bar was triggered even before execution,
and thus, the Agreement is illegal and may be void. If void, the Agreement
and its arbitration clause are a nullity and confer no authority upon the
court to compel an unwilling Marketech to arbitration. See Escareno, 239
Ariz. at 129 ¶ 7.

¶19 There are two circumstances that may prevent an arbitration
contract rendered illegal by operation of A.R.S. Section 32-1151 from being
defeated for voidness: (1) complete renegotiation of the contract after
licensure; or (2) substantial compliance with the licensing requirements. We
address each in turn.

¶20 First, a complete renegotiation and agreement to a new
contract after licensure would render the void contract moot. This is
because such renegotiation and agreement after licensure would result in a
new contract that is not subject to the fatal defects for violation of A.R.S.
Section 32-1151, which in turn provides a valid basis for enforcing an
arbitration clause contained in the new contract. On the other hand, a mere
subsequent transaction that is dependent upon prior void agreements
cannot retroactively validate the void contract. See Columbus Life Ins. Co. v.
Wilmington Tr., N.A., 255 Ariz. 382, 384 ¶ 8 (2023) (“A void contract is one
which never had any legal existence or effect, and it cannot in any manner
have life breathed into it.”). At oral argument it was discussed that
subsequent purchase and change orders could potentially have intended a

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complete renegotiation of the parties’ agreement, thereby establishing a
legal construction contract entered after PSS’s licensure. But such is not
conclusive from the record before us, so this becomes a question of fact for
the superior court to decide on remand.

¶21 Second, Arizona recognizes a narrow, equitable exception for
contractors who substantially comply with licensing requirements, see
Crowe v. Hickman’s Egg Ranch, Inc., 202 Ariz. 113, 115 ¶ 8 (App. 2002),
potentially making a contract merely voidable, rather than void. Smith v.
Pinnamaneni, 227 Ariz. 170, 173–74 ¶ 9 (App. 2011). Substantially complying
with licensing requirements allows an unlicensed contractor to bring a suit
under A.R.S. Section 32-1153, which otherwise prohibits unlicensed
contractors from seeking compensation for work performed. Aesthetic Prop.
Maint. Inc. v. Capitol Indem. Corp., 183 Ariz. 74, 78 (1995). Because such
compliance allows an unlicensed contractor to sue under an otherwise void
contract, substantial compliance with licensing requirements makes the
contract voidable instead of void. By parity of reasoning, voidable contracts
are subject to defenses regarding enforceability rather than formation, and
therefore, may properly be referred to an arbitrator for resolution. See e.g.,
Buckeye Check Cashing, Inc., 546 U.S. at 444. But the record is also not clear
on this issue, so whether PSS could meet this standard is a factual
determination the superior court must resolve before arbitration can be
compelled.

¶22 Because the court cannot use a void arbitration agreement to
force Marketech to arbitrate, and because the two exceptions discussed
above raise factual issues as to the legal existence of the Agreement, the
court, not an arbitrator, must resolve these issues before compelling
arbitration. Therefore, we vacate the superior court’s order compelling
Marketech to arbitrate formation issues. We remand to the court to
determine whether: (1) the parties completely renegotiated and agreed to a
new contract with a valid arbitration agreement, compliant with A.R.S.
Section 32-1151; or (2) the Agreement is merely voidable because of
substantial compliance. Only if the court finds that one or both of these
circumstances pertain may it then enter an order compelling Marketech to
arbitration.

IV. PSS’s Remaining Arguments Fail.

¶23 To the extent PSS contends that the arbitration clause survives
unless specifically challenged, that principle applies only when contract
enforceability is at issue—not formation. See Rent-A-Center, 561 U.S. at 71–
72. We recently reaffirmed this distinction in Duncan v. Pub. Storage, Inc.,

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No. 1 CA-CV 24-0598, 2025 WL 1304599, at *2 ¶ 9 (Ariz. App. May 6, 2025)
(mem. decision), where we held that enforceability challenges must
specifically target the arbitration clause. But where the issue is formation,
that requirement does not apply. By its own terms, the FAA finds
application only when a valid agreement to arbitrate exists. See 9 U.S.C. § 2;
see also A.R.S. §§ 12-1501 (same), -3003(A)(3) (specifying application when
there is “an agreement to arbitrate whenever made”). Where there is no
valid agreement to arbitrate, such as when an arbitration agreement is
illegal and void ab initio, arbitration—including of issues regarding
arbitrability—cannot be compelled.

¶24 Further, PSS argues that even if the Agreement as a whole is
void because of its lack of a contractor’s license, the arbitration clause itself
still survives and compels arbitration because it is separable. See Rent-A-
Center, 561 U.S. at 70 (“[A] party’s challenge to another provision of the
contract, or to the contract as a whole, does not prevent a court from
enforcing a specific agreement to arbitrate.”); see also Hamblen v. Hatch, 242
Ariz. 483, 487 ¶¶ 15–16 (2017) (recognizing Arizona’s adoption of the
separability doctrine). PSS contends that, generally, agreements to arbitrate
do not require a contractor’s license to be valid. Thus, because the
Agreement’s arbitration clause must be regarded as a separate contract
from the Agreement itself, see Rent-A-Center, 561 U.S. at 70, that clause
survives Marketech’s challenge grounded in PSS’s lack of a contractor’s
license. PSS’s argument goes too far.

¶25 True, arbitration clauses must be treated as separable.
Hamblen, 242 Ariz. at 487 ¶¶ 15–16. And an agreement to arbitrate in a
general transaction does not require a contractor’s license to be valid. See
generally A.R.S. §§ 12-1501, -3003. But the arbitration agreement at issue in
this case is clearly not for a general transaction. Rather, it is unquestionably
an agreement to arbitrate disputes involving a construction contract. The
terms of the Agreement—and the inclusion and language of the arbitration
clause contained within it—establish that the clause was part of the
negotiations for construction services. That context is sufficient to bring the
separate arbitration contract within the ambit of A.R.S. Section 32-1151.
And as provided in A.R.S. Section 32-1153, no contractor shall:

commence or maintain any action in any court of the state for
collection of compensation for the performance of any act for
which a license is required . . . without alleging and proving
that the [contractor] was a duly licensed contractor when the
contract sued upon was entered into and when the alleged
cause of action arose.

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¶26 Enforcing any award under the arbitration agreement at issue
would require PSS to do so in court and would necessarily depend upon
the context and purpose for which the clause was entered, i.e., for
construction services. But it is not disputed that PSS lacked a valid
contractor’s license when the Agreement containing the instant arbitration
clause was signed. Nor is it reasonably disputable that the instant
arbitration clause is for the arbitration of disputes surrounding the
provision of construction services under the Agreement. Thus, A.R.S.
Sections 32-1151 and -1153 apply to the arbitration clause, even when
treated as a separate contract. Unless PSS establishes at least one of the
exceptions to the requirements of those statutes as discussed above, the
statutes will prevent PSS from enforcing the arbitration clause, though it be
separable. Therefore, the separability of the arbitration clause does not alter
the result here.

CONCLUSION

¶27 We accept special action jurisdiction. On this record, we hold
that the superior court may not compel arbitration of the issues of legality
and voidness of the Agreement and its embedded arbitration clause.
Instead, because formation is at issue, the court must itself resolve the
legality and voidness of the Agreement and the arbitration clause before
compelling arbitration of any further issues or disputes as described above.
See supra ¶ 22. Therefore, we vacate the court’s order and remand for the
superior court to conduct such proceedings as may be necessary to resolve
these issues.

¶28 PSS requests attorneys’ fees pursuant to A.R.S. Section
12-341.01, but because no decision on the merits has been reached, the
request is premature and denied. Austin, 237 Ariz. at 210–11 ¶ 34. But this
denial is without prejudice to seek fees incurred during this special action
at conclusion of the action on its merits. As the prevailing party on appeal,
we award Marketech its costs upon its compliance with Rule 21 of the
Arizona Rules of Civil Appellate Procedure.

P A T O N, Judge, dissenting:

¶29 I dissent because I would have declined to exercise special
action jurisdiction.

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¶30 The legislature has identified six instances in which an
arbitration order, judgment, or decree can be appealed. A.R.S. § 12-2101.01.
These include an order denying an application to compel arbitration, orders
denying confirmation of an award, modifying or correcting an award, and
the final award. See id. Although Section 12-2101.01 expressly permits
appeals from orders denying to compel arbitration, it is silent as to orders
compelling arbitration, the type of order at issue here. Id.

¶31 In Roeder v. Huish, our supreme court held that an order
compelling arbitration was not appealable prior to the arbitration
proceedings, but such an order could be properly reviewed after the
arbitration award was confirmed. 105 Ariz. 508, 510 (1970). The court
reaffirmed this principle in Southern California Edison Company v. Peabody,
when it held that a superior court order compelling arbitration is not
appealable until a final order is entered after arbitration proceedings have
concluded. 194 Ariz. 47, 54, ¶ 23 (1999). As our supreme court reasoned in
Peabody, by making orders compelling arbitration non-appealable, the
legislature disfavors interlocutory review of orders compelling arbitration.
Id. at ¶¶ 16–17 (“[A] multitude of appeals from orders compelling
arbitration would use judicial and litigant resources when arbitration might
determine all issues to the parties’ satisfaction.”).

¶32 It thus follows that Marketech’s action here is “equally
appropriate to address by appeal” after the arbitration process takes place,
i.e., the award is confirmed in a final judgment—which is one of our
considerations in determining whether to exercise special action
jurisdiction. Ariz. R. P. Spec. Act. 12(c)(4). In citing Peabody, the majority
justifies its exercise of special action jurisdiction here after noting that “[the]
general rule [prohibiting appeals from orders compelling arbitration]
provides little comfort in those cases in which there are complex issues and
in which a bona fide dispute exists over arbitrability.” Decision supra ¶ 7.
And “[i]n those instances, justice might be better served by pre-arbitration
resolution of arbitrability.” Decision supra ¶ 7.

¶33 Marketech and the majority contend that we should accept
jurisdiction because the arbitration agreement is illegal and it “should not
be forced to arbitrate with PSS over the next year incurring significant
attorneys’, arbitration, and expert fees and costs, which will only result in a
decision that PSS can never enforce in court.” But I am not persuaded that
avoiding the expense of arbitration is a compelling reason to consider the
issue now, when it is “equally appropriate to address by appeal.” Ariz. R.
P. Spec. Act. 12(c)(4). Particularly where, as here, Marketech could have
sought special action review of the superior court’s denial of its motion to

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certify its order under Rule 54(b)—the procedure Peabody laid out for
challenging an order compelling arbitration via special action review.
Peabody, 105 Ariz. at 53, ¶ 18. If we were to decline, it is also possible that
the arbitrator may agree with Marketech’s position on the arbitrability issue
in that proceeding and, even if it did not, Marketech could still prevail in
the arbitration on the underlying merits. But the bottom line is, if Marketech
loses in the arbitration, the arbitrability issue it raises via special action here
is “equally appropriate to address by appeal.” Ariz. R. P. Spec. Act. 12(c)(4).

¶34 For these reasons, I would have declined to exercise special
action jurisdiction here. I therefore respectfully dissent.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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