The Court held unless the arbitration agreement commits the question to the arbitrator with “clear and unmistakable” language, a litigation-conduct waiver is presumptively for the court to decide because it is a waiver based on active litigation in court. Thus, the district court judge in this case did not err in addressing whether the moving party waived its right to arbitrate, instead of referring the question to the arbitrator.
Maher, Katherine, "Principal Investments v. Harrison, 132 Nev. Adv. Op. 2 (Jan. 14, 2016)" (2016). Nevada Supreme Court Summaries. 946.