However, it does not follow that even if there were an otherwise arbitrable ambiguity, the trial court was obliged to order arbitration. In Moresi v. Nationwide Mutual, 309 Or. 619, 789 P.2d 667 (1990), the Supreme Court noted that, before a court may compel arbitration under ORS 36.310, more must be shown than the mere existence of a dispute that is arguably subject to an agreement to arbitrate. A plaintiff must further prove the "statutory condition precedent" that a defendant has "failed, neglected or refused to arbitrate in accordance with a contract arbitration provision."

Claiming that the contractual reference to the OAA governed all arbitration matters, defendant argued that Oregon law required the court to determine whether plaintiff had fulfilled those conditions precedent to arbitration. For that proposition, defendant relied on Moresi v. Nationwide Mutual, 96 Or App 61, 64, 771 P2d 301 (1989), rev'd on other grounds, 309 Or 619, 789 P2d 667 (1990) (applying state law; "`conditions precedent' are matters for judicial determination when they involve the conditions that the parties agreed on about access to the arbitral forum"). Second, defendant argued that plaintiff was not a "party aggrieved by the failure, neglect or refusal of another" to perform under an arbitration clause, former ORS 36.310 (2001), because plaintiff had not made a written demand for arbitration in accordance with GC 35 of the contracts.

Under that statute, a court is required to compel arbitration only when the petition alleges the refusal of another person to arbitrate pursuant to an agreement. Cf. Moresi v. Nationwide Mutual , 309 Or. 619, 622, 789 P.2d 667 (1990) (an actual refusal to arbitrate is required before court may compel arbitration under former version of statute requiring that a party be "aggrieved by the failure, neglect or refusal of another to perform under a contract or submission providing for arbitration") As noted, AAC's petition failed to allege that EWEB had refused to arbitrate. Accordingly, the petition lacked a critical element needed to justify an order.

In response, defendant argued that the parties' choice of Oregon law extended to all arbitration matters and that, under Oregon law, the court rather than the arbitrator must determine whether contractual conditions precedent to arbitration had been met. See Moresi v. Nationwide Mutual, 96 Or App 61, 64, 771 P2d 301 (1989), rev'd on other grounds, 309 Or 619, 789 P2d 667 (1990) ("[c]onditions that the parties agreed on about access to the arbitral forum" are matters for the court). According to defendant, the court therefore had authority to determine, and should determine, that plaintiff's failure to meet those conditions precedent foreclosed arbitration.

We will not engage in a survey of cases from other jurisdictions; suffice it to say that we have examined several, and find that the majority rule is more appropriate. City of Lenexa v. C.L. Fairley Construction Company, Inc., 15 Kan. App. 2d 207, 805 P.2d 507 (1991); Executive Life Insurance Company v. John Hammer Associates, Inc., 569 So.2d 855 (Fla.App. 2 Dist., (1990); Nielsen v. Butterworth Hospital, 182 Mich. App. 507, 452 N.W.2d 848 (1990), rev'd sub nom Neilsen v. Barnett, 440 Mich. 1, 485 N.W.2d 666 (1992); USX Corporation v. West, 781 S.W.2d 453 (Tex.App. 1989); Matter of Village of Saranac Lake, Inc. (H. Schickel General Contracting, Inc.), 154 A.D.2d 855, 546 N.Y.S.2d 713 (1989); Emcon Corporation v. Pegnataro, 212 Conn. 587, 562 A.2d 521 (1989); Matter of McGreevy (Civil Services Employees Association, Inc. on Behalf of Moore), 150 A.D.2d 891, 540 N.Y.S.2d 914 (1989); Moresi v. Nationwide Mutual, 96 Or.App. 61, 771 P.2d 301 (1989), rev'd, 309 Or. 619, 789 P.2d 667 (1990); and Bennett v. Shearson Lehman-American Express, Inc., 168 Mich. App. 80, 423 N.W.2d 911 (1987). Our decision is based on two factors.

" (Footnotes omitted.) Forest relies on Union County Sch. Dist. No. 1 v. Valley Inland, 59 Or. App. 602, 652 P.2d 349 (1982); Moresi v. Nationwide Mutual, 96 Or. App. 61, 771 P.2d 301 (1989), rev'd on unrelated grounds 309 Or. 619, 789 P.2d 667 (1990); and Halvorson-Mason Corp. v. Emerick Const. Co., 304 Or. 407, 745 P.2d 1221 (1987), for the proposition that a court may review the merits of the arbitrability decision. Correctly read, those cases support the opposite answer.