arbitrating commercial disputes in the united states...the new york international arbitration...

ArbitrAting CommerCiAl

Disputes in the uniteD stAtes

PLI’S COMPLETE LIBRARY OF TREATISE TITLES

ART LAWArt Law: The Guide for Collectors, Investors, Dealers & Artists

BANKING & COMMERCIAL LAWAsset-Based Lending: A Practical Guide to Secured FinancingConsumer Financial Services Answer BookEquipment Leasing–Leveraged LeasingFinancial Institutions Answer Book: Law, Governance, ComplianceHillman on Commercial Loan DocumentationHillman on Documenting Secured Transactions: Effective Drafting and LitigationMaritime Law Answer Book

BANKRUPTCY LAWBankruptcy DeskbookPersonal Bankruptcy Answer Book

BUSINESS, CORPORATE & SECURITIES LAWAccountants’ LiabilityAnti-Money Laundering: A Practical Guide to Law and ComplianceAntitrust Law Answer BookBroker-Dealer RegulationConducting Due Diligence in a Securities OfferingCorporate Compliance Answer BookCorporate Legal Departments: Practicing Law in a CorporationCorporate Political Activities DeskbookCorporate Whistleblowing in the Sarbanes-Oxley/Dodd-Frank EraCovered Bonds HandbookCybersecurity: A Practical Guide to the Law of Cyber RiskDerivatives Deskbook: Close-Out Netting, Risk Mitigation, LitigationDeskbook on Internal Investigations, Corporate Compliance, and White Collar IssuesDirectors’ and Officers’ Liability: Current Law, Recent Developments, Emerging IssuesDoing Business Under the Foreign Corrupt Practices ActEPA Compliance and Enforcement Answer BookExempt and Hybrid Securities OfferingsFashion Law and Business: Brands & RetailersFinancial Product Fundamentals: Law, Business, ComplianceFinancial Services Mediation Answer BookFinancial Services Regulation DeskbookFinancially Distressed Companies Answer BookGlobal Business Fraud and the Law: Preventing and Remedying Fraud and CorruptionHedge Fund RegulationInitial Public Offerings: A Practical Guide to Going PublicInsider Trading Law and Compliance Answer BookInsurance and Investment Management M&A DeskbookInternational Corporate Practice: A Practitioner’s Guide to Global SuccessInvestment Adviser Regulation: A Step-by-Step Guide to Compliance and the LawLegal Guide to the Business of MarijuanaLife at the Center: Reflections on Fifty Years of Securities RegulationMergers, Acquisitions and Tender Offers: Law and StrategiesMutual Funds and Exchange Traded Funds RegulationOutsourcing: A Practical Guide to Law and BusinessPrivacy Law Answer BookPrivate Equity Funds: Formation and OperationProskauer on Privacy: A Guide to Privacy and Data Security Law in the Information AgePublic Company Deskbook: Complying with Federal Governance & Disclosure RequirementsSEC Compliance and Enforcement Answer BookSecurities Investigations: Internal, Civil and Criminal

PLI's Complete Treatise Library (standard page size).fm Page i Wednesday, September 5, 2018 3:57 PM

Securities Law and Practice DeskbookThe Securities Law of Public FinanceSecurities Litigation: A Practitioner’s GuideSocial Media and the LawSoderquist on Corporate Law and PracticeSovereign Wealth Funds: A Legal, Tax and Economic PerspectiveA Starter Guide to Doing Business in the United StatesTechnology Transactions: A Practical Guide to Drafting and Negotiating Commercial

AgreementsVariable Annuities and Variable Life Insurance Regulation

COMMUNICATIONS LAWAdvertising and Commercial Speech: A First Amendment GuideSack on Defamation: Libel, Slander, and Related ProblemsTelecommunications Law Answer Book

EMPLOYMENT LAWEmployment Law YearbookERISA Benefits Litigation Answer BookLabor Management Law Answer Book

ESTATE PLANNING AND ELDER LAWBlattmachr on Income Taxation of Estates and TrustsEstate Planning & Chapter 14: Understanding the Special Valuation RulesInternational Tax & Estate Planning: A Practical Guide for Multinational InvestorsManning on Estate PlanningNew York Elder LawStocker on Drawing Wills and Trusts

HEALTH LAWFDA Deskbook: A Compliance and Enforcement GuideHealth Care Litigation and Risk Management Answer BookHealth Care Mergers and Acquisitions Answer BookMedical Devices Law and Regulation Answer BookPharmaceutical Compliance and Enforcement Answer Book

IMMIGRATION LAWFragomen on Immigration Fundamentals: A Guide to Law and Practice

INSURANCE LAWBusiness Liability Insurance Answer BookInsurance Regulation Answer BookReinsurance Law

INTELLECTUAL PROPERTY LAWCopyright Law: A Practitioner’s GuideFaber on Mechanics of Patent Claim DraftingFederal Circuit Yearbook: Patent Law Developments in the Federal CircuitHow to Write a Patent ApplicationIntellectual Property Law Answer BookKane on Trademark Law: A Practitioner’s GuideLikelihood of Confusion in Trademark LawPatent Claim Construction and Markman HearingsPatent Law: A Practitioner’s GuidePatent Licensing and Selling: Strategy, Negotiation, FormsPatent LitigationPharmaceutical and Biotech Patent LawPost-Grant Proceedings Before the Patent Trial and Appeal BoardSubstantial Similarity in Copyright LawTrade Secrets: A Practitioner’s Guide

PLI's Complete Treatise Library (standard page size).fm Page ii Wednesday, September 5, 2018 3:57 PM

LITIGATIONArbitrating Commercial Disputes in the United StatesClass Actions and Mass Torts Answer BookDepositions Answer BookElectronic Discovery DeskbookEssential Trial Evidence: Brought to Life by Famous Trials, Films, and FictionExpert Witness Answer BookEvidence in Negligence CasesFederal Bail and Detention HandbookHow to Handle an AppealMedical Malpractice: Discovery and TrialProduct Liability Litigation: Current Law, Strategies and Best PracticesSinclair on Federal Civil PracticeTrial Handbook

REAL ESTATE LAWCommercial Ground LeasesFriedman on Contracts and Conveyances of Real PropertyFriedman on LeasesHoltzschue on Real Estate Contracts and Closings: A Step-by-Step Guide to Buying and

Selling Real EstateNet Leases and Sale-Leasebacks

TAX LAWThe Circular 230 Deskbook: Related Penalties, Reportable Transactions, Working FormsThe Corporate Tax Practice Series: Strategies for Acquisitions, Dispositions, Spin-Offs, Joint

Ventures, Financings, Reorganizations & RestructuringsForeign Account Tax Compliance Act Answer BookInternal Revenue Service Practice and Procedure DeskbookInternational Tax & Estate Planning: A Practical Guide for Multinational InvestorsInternational Tax Controversies: A Practical GuideInternational Trade Law Answer Book: U.S. Customs Laws and RegulationsLanger on Practical International Tax PlanningThe Partnership Tax Practice Series: Planning for Domestic and Foreign Partnerships, LLCs,

Joint Ventures & Other Strategic Alliances Private Clients Legal & Tax Planning Answer BookTransfer Pricing Answer Book

GENERAL PRACTICE PAPERBACKSAnatomy of a Mediation: A Dealmaker’s Distinctive Approach to Resolving Dollar Disputes

and Other Commercial ConflictsAttorney-Client Privilege Answer BookDrafting for Corporate Finance: Concepts, Deals, and DocumentsPro Bono Service by In-House Counsel: Strategies and PerspectivesSmart Negotiating: How to Make Good Deals in the Real WorldThinking Like a Writer: A Lawyer’s Guide to Effective Writing & EditingWorking with Contracts: What Law School Doesn’t Teach You

Order now at www.pli.eduOr call (800) 260-4754 Mon.–Fri., 9 a.m.–6 p.m.

Practising Law Institute1177 Avenue of the Americas

New York, NY 10036

When ordering, please use Priority Code NWS9-X.

PLI's Complete Treatise Library (standard page size).fm Page iii Wednesday, September 5, 2018 3:57 PM

ArbitrAting CommerCiAl

Disputes in the uniteD stAtes

David C. Singer

Practising Law Institute New York City

#245265

This work is designed to provide practical and useful information on the subject matter covered. However, it is sold with the understanding that neither the publisher nor the author is engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

QUESTIONS ABOUT THIS BOOK?

If you have questions about billing or shipments, or would like information on our other products, please contact our customer service department at [email protected] or at (800) 260-4PLI.

For any other questions or suggestions about this book, contact PLI’s editorial department at [email protected].

For general information about Practising Law Institute, please visit www.pli.edu.

Legal Editor: Keith Voelker

Copyright © 2018 by Practising Law Institute.

All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Practising Law Institute.

LCCN: 2018942977

ISBN: 978-1-4024-3114-2

vii

About the Editor

DaviD C. Singer is the editor of this treatise, and the author or coauthor of chapters 1, 2, 6 and 13. He has served for over thirty years as an independent arbitrator of complex domestic and international disputes, including as chair and wing of three-arbitrator panels and as a sole arbitrator. He has arbitrated hundreds of cases focusing on busi-ness and commercial contracts, “business divorces,” M&A and other corporate transactions, executive employment agreements, and distrib-utor and dealer agreements, in a wide variety of industries including banking and financial services, real estate, fashion and apparel, med-ical and healthcare, technology, business equipment, hospitality, pro-fessional services, telecommunications, and more. He has more than twenty-five years of experience as an independent mediator, and has mediated hundreds of cases, including those focusing on business and commercial contracts, partnership, LLC, corporate and other business divorces, corporate transactions, executive employment agreements, and distributor and dealer agreements.

As of January 1, 2018, he established his own practice as a dedi-cated independent neutral.

For thirty-seven years—including twenty-eight years as a partner at the law firm Dorsey & Whitney LLP—David served as lead litiga-tion and trial counsel on matters involving business contracts, busi-ness torts, executive employment agreements, restrictive covenants, unfair competition, fraud, misappropriation of trade secrets, employ-ment terminations and discrimination, real estate valuations, and other commercial, employment, and international matters. He suc-cessfully tried and defended cases in federal and state courts before judges and juries, and represented clients before administrative agencies and arbitration panels, and in appeals, mediations, and negotiations.

David is a Fellow of England’s Chartered Institute of Arbitrators and the College of Commercial Arbitrators, a certified mediator with the International Mediation Institute, and a member of the National Academy of Distinguished Neutrals. He serves on the arbitration panels of the American Arbitration Association (large complex com-mercial, employment) and the International Center for Dispute Res-olution (international), and is a Distinguished Neutral of the Inter-national Institute for Conflict Prevention and Resolution (franchise, employment). He also serves on the mediation panels of the AAA and state and federal courts.

viii

ARBITRATING COMMERCIAL DISPUTES IN THE U.S.

David served as chair of the Dispute Resolution Section of the New York State Bar Association, and previously co-chaired the section’s Mediation Committee. He is a member of the board of directors of the New York International Arbitration Center. He has written exten-sively in the field of arbitration and mediation and spoken on such topics to an array of professional organizations, bar associations, and other groups.

David graduated magna cum laude from the University of Pennsylvania and received his law degree from New York Univer-sity School of Law. He has been named annually in Best Lawyers in America and New York Super Lawyers and received AV Preeminent peer rating by Martindale-Hubbell for more than twenty years. His website is at www.singeradr.com.

ix

About the Contributors

MiChael D. Young is a coauthor of chapters 3 and 9. Since joining JAMS as a full-time neutral in 1989, he has conducted over 1,800 com-plex or multiparty dispute resolution processes in over thirty states (as well as in Puerto Rico) and abroad (such as in Rome, Madrid, and Zu-rich), including approximately 275 arbitrations, appraisals, or other binding dispute resolution proceedings. He has been appointed as a mediator or special master (for discovery management or settlement implementation purposes) by various federal, state, and bankruptcy courts, and has served as an arbitrator in all capacities, including as an umpire or chair and as either an independent and nonindepen-dent party-appointed “wing.” Although associated with JAMS, he has served as an arbitrator under the aegis of the ICDR and ICC, among other non-JAMS fora. He is a member of the College of Commercial Arbitrators and since 2016 has been designated by Chambers USA as a Band One Mediator. Mr. Young is a 1978 graduate of Harvard Law School.

Cliff BlooMfielD is a coauthor of chapters 3 and 9. He is associat-ed with JAMS, where he has worked on a wide range of commercial arbitrations. He began his legal career as a litigation associate in New York where his practice focused on complex commercial litigation. Before joining JAMS, he served as a law clerk at both the U.S. District Court for the Southern District of New York and the U.S. Bankruptcy Court for the Eastern District of New York. Mr. Bloomfield received his J.D. from the University of Pennsylvania Law School and his B.A. cum laude from Cornell University’s College of Arts and Sciences.

MarC J. golDStein is the author of chapter 4. He dedicates his pro-fessional time to service as an independent arbitrator and mediator of complex international and domestic business disputes. For more than two decades at Proskauer Rose LLP in New York, he handled complex civil litigation and represented American and foreign clients in international arbitrations including many against sovereign States and their instrumentalities. He established a boutique international dispute resolution practice in 2007 and since that time has served in more than 115 matters as a neutral. Mr. Goldstein was graduated magna cum laude from the University of Pennsylvania, and was an

x


editor of the Law Review at the University of Virginia Law School. He has been named annually for more than a decade as a leading practi-tioner in international commercial arbitration by Global Arbitration Review (Who’s Who Legal), Best Lawyers in America, and New York Super Lawyers. As the creator (in 2009) and sole author of Arbitration Commentaries (http://arbblog.lexmarc.us), Mr. Goldstein publishes essays and commentaries on dispute resolution law and practice that are read by leading practitioners worldwide. He is a member (inter alia) of the American Law Institute and the International Arbitration Clubs in New York and London, the National Association of Distinguished Neutrals, and U.S. Arbitration Committee of the International Chamber of Commerce. He is a Fellow of the College of Commercial Arbitrators and the Chartered Institute of Arbitrators. His name is included in the arbitrator rosters of the AAA (ICDR and Large/Complex Case); CPR Distinguished Panels of Neutrals (international, national, account-ing, banking-finance), the Asian International Arbitration Centre, and the Hong Kong International Arbitration Centre, and his creden-tials may also be found in the ICC arbitrator database. He has writ-ten many articles on arbitration for major peer-reviewed publications such Arbitration International and the American Review of Interna-tional Arbitration. He is regularly called upon to make oral presenta-tions and to teach and lecture on dispute resolution topics in a wide range of forums, including the College of Commercial Arbitrators’ annual and regional meetings, membership luncheons of the New York International Arbitration Club, AAA national neutrals’ confer-ences and special events, and professional development programs of the Osgoode Hall Law School and Toronto Commercial Arbitration Society. His website is www.lexmarc.us.

laura a. KaSter is the author of chapter 5. She is the 2014 recipient of the NJSBA’s Boskey Award for the ADR practitioner of the year. She comes to her work as a full-time arbitrator and mediator from a background first as a litigation partner at Jenner & Block and then as Chief Litigation Counsel for AT&T, where she was responsible for all of AT&T’s arbitrations including complex insurance matters, IP liti-gation, and all appeals in complex litigation and employment matters. From 2015–2017, she was the President of the Justice Marie L. Garibaldi ADR Inn of Court, the first ADR Inn in the country. She is a fellow of the College of Commercial Arbitrators and one of the editors of its Guide to the Best Practices in Commercial Arbitration. She is also a past chair of the NJSBA Dispute Resolution Section and a co-ed-itor in Chief of the NYSBA’s journal, Dispute Resolution Lawyer. She has served as an arbitrator in complex commercial, telecom, bio-tech, patent and trademark licensing, partnership, family business,

xi


employment, and securities disputes. She has served as a mediator in over 200 matters including matters involving hundreds of millions of dollars and long-running disputes. She is on the Roster of the National Academy of Distinguished Neutrals. She is on the Tech List of the Silicon Valley Arbitration and Mediation Center, an arbitrator for the American Arbitration Association (AAA); for the International Insti-tute for Prevention and Resolution (CPR), on its telecom, E-Discovery Panel, Technology Panel, and Trademark Panels; and for FINRA. She is a hearing officer for National Arbitration and Mediation (NAM), a member of the Global Panel for the Center on Dispute Resolution (CEDR), and a mediator for the Global Mediation Exchange Center. She is CEDR accredited and an IMI Certified mediator. She is a master mediator for the AAA and on the ICDR panel. She graduated from Tufts University with a B.A. and received her J.D. magna cum laude from Boston University Law School, where she received the Melville Bigelow award for “the greatest promise as a teacher and scholar of the law.” Following law school, she clerked for the Honorable Frank M. Coffin, then Chief Judge of the First Circuit Court of Appeals.

harrie SaMaraS is the author of chapter 7. An experienced, full-time neutral, she focuses on arbitrating and mediating intellectual prop-erty and technology disputes involving U.S. and international parties. Ms. Samaras is a Fellow of the College of Commercial Arbitrators and the Chartered Institute of Arbitrators. She is a Distinguished Fellow of the International Academy of Mediators and an American Arbitra-tion Association Master Mediator, and she is certified by the Interna-tional Mediation Institute. Ms. Samaras serves as a neutral for ADR institutions including the American Arbitration Association and its international arm, the International Centre for Dispute Resolution, CPR International Institute for Conflict Prevention and Resolution, World Intellectual Property Organization, and the ICC International Court of Arbitration. Ms. Samaras has worked as an attorney in the private sector, focusing her practice on intellectual property litigation at the trial and appellate levels. She has also worked in the corporate sector, holding the positions of Director of Intellectual Property Lit-igation for a Fortune 500 telecommunications company and later as Vice President Intellectual Property, Legal, for a business unit of a pharmaceutical/drug delivery company. Early in her legal career Ms. Samaras served as a staff attorney at the U.S. Court of Appeals for the Federal Circuit and then as a law clerk for Chief Judge Helen Wilson Nies. Ms. Samaras received an LL.M. in Patent and Trade Regulation Law from the George Washington University Law School, a J.D. from the University of Baltimore School of Law, and an M.S. and a B.S. from the University of Maryland in the life sciences and chemistry.

xii


She has held many leadership positions over the years, including her current positions as the chair-elect of the ABA Dispute Resolution Section and as a member of the Board of the College of Commercial Arbitrators. Ms. Samaras is a frequent speaker and ardent writer on various dispute resolution topics, including serving as the editor and contributing author of ADR Advocacy, Strategies, and Practices for Intellectual Property and Technology Cases (2d ed.) published by the ABA Intellectual Property Law Section.

BarBara a. reeveS is the author of chapter 8. She is a mediator, arbitrator, and special master/referee with JAMS. She handles a wide range of commercial matters, with expertise in intellectual property, the health care industry, and sports and entertainment. She is an arbitrator on the Court of Arbitration for Sport. After clerking for the Ninth Circuit Court of Appeals, she practiced at the U.S. Department of Justice, Antitrust Division in Washington, D.C. and Los Angeles, was a partner at national law firms, and was Associate General Coun-sel and Vice President for Southern California Edison and Edison International. She joined JAMS full-time in 2006. She is a Fellow of the Chartered Institute of Arbitrators and the College of Commercial Arbitrators, and a certified mediator with the International Mediation Institute. She received her J.D. cum laude from Harvard Law School.

John WilKinSon is the author of chapter 10. He has served as an arbitrator and mediator of numerous large and complex corporate disputes. He has written extensively in the field of arbitration and mediation and was editor and contributing author of the ADR Practice Book, which received an award and honorarium as the best dispute resolution book of 1993. He has spoken often on the subject of arbitra-tion and mediation to a wide array of professional and bar association groups, corporate legal departments, and law school classes, as well as to the legal department of the Navy. He is a Fellow of the College of Commercial Arbitrators and has served as a member of its board of directors. He serves on the AAA and the CPR arbitration and media-tion panels in New York. He has served as Chair of the Dispute Res-olution Section of the New York State Bar Association and previously chaired the section’s Arbitration and Mediation Committees. He also has served on a six-person committee that revised the Model Stan-dards of Conduct for Mediators. He has received a Lifetime Achieve-ment Award from the American College of Civil Trial Mediators and from Marquis’ Who’s Who. He is a Master Mediator for the American Arbitration Association (one of nine in New York State). He is regu-larly listed in Best Lawyers, Super Lawyers, American Lawyer Top Lawyers, and the like. His website is www.JohnWilkinsonlaw.com.

xiii


PhiliP D. o’neill, Jr., is the author of chapter 11. He is currently an independent arbitrator, educator, and author. He was a partner at Edwards Wildman Palmer LLP (now Locke Lord) and before that at Hale and Dorr (now WilmerHale). His global legal practice for more than thirty-five years included adjudicating billions of dollars in cross-border commercial claims, as well as general counsel projects in as many as fifty countries per year. He is a Fellow in the Col-lege of Commercial Arbitrators, in England’s Chartered Institute of Arbitrators, and is a Chartered Arbitrator as well. An adjunct law professor for nearly three decades, he presently teaches seminars at Boston University and Boston College Law Schools on International Arbitration. Mr. O’Neill previously taught International Arbitration at Harvard Law School, and International Business Transactions at the Fletcher School of Law and Diplomacy. The author of books pub-lished by Oxford University and West Academic Press, Mr. O’Neill also authored numerous book chapters and journal articles, most relating to international arbitration. The American Arbitration Asso-ciation includes two of his chapters in its current handbooks on inter-national and domestic commercial arbitration.

John l. garDiner is a coauthor of chapter 12. He is co-head of Skad-den’s International Litigation and Arbitration Group. Mr. Gardiner’s extensive litigation, arbitration, and mediation experience covers a wide range of disputes in the aluminum, energy, insurance/reinsur-ance, telecommunications, construction, and finance sectors. He also has acted as arbitrator in complex international corporate disputes and as mediator in intricate corporate and partnership separation situations.

BarrY garfinKel is a coauthor of chapter 12. He is a senior mem-ber of Skadden’s International Litigation and Arbitration Group. He formerly headed the group. He has handled a broad spectrum of U.S. and international litigation and arbitration matters. He also formerly headed the firm’s U.S. litigation practice. Mr. Garfinkel also has served as party-nominated arbitrator in ICC, AAA, and ad hoc arbi-tral tribunals and has served as the chairman of tribunals. He has advised numerous firm clients on the preparation of arbitral clauses in international commercial contracts and overall arbitration strat-egy. The matters in which he has acted as both counsel and arbitrator are a broad spectrum, including construction disputes, investment, joint ventures, sales and distribution, insurance, securities law, oil and gas, corporate and commercial, power and energy, and technol-ogy issues. Mr. Garfinkel is listed as “leading” in Chambers Global, Chambers USA, Euromoney Publications’ Guide, International Who’s Who of Commercial Arbitrators and The Best Lawyers in America. He was named Best Lawyers’ 2015 New York City International

xiv


Arbitration—Commercial Lawyer of the Year. Mr. Garfinkel is a fre-quent lecturer on AAA and ICC programs, which he also has chaired. His writings on diverse international arbitration topics have been published in Mealey’s and in AAA publications. He also has lectured on international arbitration topics at the Second Circuit Judicial Con-ference. Chambers states that Mr. Garfinkel “earns great respect from peers as a senior member of the firm’s dispute resolution practice,” is a “great resource of arbitration knowledge,” and is considered an “outstanding arbitrator.”

gunJan SharMa is a coauthor of chapter 12. He is a former senior associate in Skadden’s International Litigation and Arbitration Group. He routinely represents clients in complex international disputes, including commercial arbitrations, investor-state arbitrations, domes-tic litigations, and cross-border litigations. Mr. Sharma has partic-ipated in the representation of clients before ICSID, UNCITRAL, ICDR, and ICC arbitral tribunals; and has also participated in con-troversies in U.S. judicial forums, including the U.S. Court of Appeals for the Second Circuit and for the District of Columbia and various U.S. district courts and New York state courts. Mr. Sharma also reg-ularly assists clients in understanding and protecting their interna-tional and domestic rights with respect to foreign investment in a wide variety of contexts, including by advising clients on the current status of NAFTA, the CPTPP, and other major free trade agreements; by acting as counsel in investor-state arbitrations; by advising clients on the scope of their protection under bilateral investment treaties; and by drafting and submitting requests for diplomatic protection.

ChriStina g. hanSon is a coauthor of chapter 13. She is an asso-ciate in the Trial Group at Dorsey & Whitney LLP in Minneapolis, Minnesota. Her practice focuses primarily on consumer and financial services litigation, contract disputes, and litigation in the agricultural industry. Ms. Hanson received her J.D. from the University of St. Thomas School of Law, and completed her undergraduate work at the Carlson School of Management, University of Minnesota, graduating with a B.S. in marketing.

aBigail PeSSen is the author of chapter 14. She has her own dis-pute resolution firm in New York City. Abigail is an arbitrator for the American Arbitration Association’s Large, Complex Case and Employment Panels and for the ICDR, serving as arbitrator in dis-putes concerning partnership agreements, sale of goods, licensing, the hospitality industry, physicians and hospitals, insurance, wrong-ful termination of employment, and numerous other commercial and employment disputes. She is also a mediator, serving on the Master Mediator Roster for the American Arbitration Association and on

xv


various court panels, as well as handling private mediations. Abigail was honored to have been chosen NYC Best Lawyers’ Lawyer of the Year for Arbitration in 2016, and Lawyer of the Year for Mediation in 2015. She served as Chair of the New York State Bar Association Dis-pute Resolution Section in 2016–17. Abigail is a Fellow of the College of Commercial Arbitrators. She is a frequent speaker and author on ADR-related topics. Before becoming a full-time neutral, she clerked for federal judge Whitman Knapp, was an assistant professor at New York Law School, and had a successful career as a commercial litiga-tor with the firm of Scoppetta & Seiff. She is a graduate of Barnard College and the University of Chicago Law School. Abigail has earned U.S. News & World Report’s top-tier ranking for both arbitration and mediation for 2018 and all previous years since the rankings began, has an AV rating from Martindale-Hubbell, and is regularly listed as a “Super Lawyer” in the field of ADR.

riCharD l. MattiaCCio is a coauthor of chapter 15. Mr. Mattiaccio is a partner in the firm of Allegaert Berger & Vogel LLP in its international commercial arbitration and litigation practice. He has been active as New York counsel in international and commercial arbitration and litigation for over thirty-five years and as an arbitrator for thirty years. He has served as chair, sole, and wing arbitrator on international arbi-tration tribunals, on domestic panels, or as sole arbitrator in complex commercial, executive employment, and professional partnership dis-putes under AAA/ICDR, ICC, UNCITRAL CPR Institute, and other rules. He currently serves as a panel arbitrator with AAA/ICDR and CPR Institute and as arbitrator in ICC cases. He is a Chartered Arbi-trator (C Arb) and Fellow of the Chartered Institute of Arbitrators (FCIArb); a Fellow of the College of Commercial Arbitrators (CCA); and a Member of the National Academy of Distinguished Neutrals (NADN). He currently chairs the International Commercial Disputes Committee (ICDC) of the New York City Bar Association and was a founding co-chair of the IDR Committee of the NYSBA Dispute Res-olution Section. He serves as vice chair of the CIArb New York Branch and as a vice chair of the New York International Arbitration Center, Inc. (NYIAC). He is a member of the International Arbitration Club of New York and contributes to New York City Bar, CIArb New York Branch, CPR Institute, and NYSBA-sponsored CLE programs. His publications include Arbitration Do’s and Don’ts for the Trial Lawyer (NYSBA NY Litigator, Fall/Winter 2014); Arbitration Tips and Traps for Corporate Counsel (Corporate Counsel, October 2014); Expert Q&A on International Arbitration in New York (Practical Law, April /May 2018); and In-House Counsel’s Key Role in Arbitration: Ensuring the Process Meets Company Expectations, Inside, NYSBA Corporate Counsel Section vol. 33, no. 3, Winter 2015. Articles are available at www.mattiaccio.com.

xvi


Steven SKulniK is a coauthor of chapter 15. He is a Senior Legal Editor at Practical Law—Thomson Reuters in New York and serves as an arbitrator and mediator. He has sat on cases involving, for exam-ple, licensing, distribution, sales of equipment, and internal business entity disputes. Mr. Skulnik’s law practice focused on litigation and arbitration matters. He previously was counsel at Squire Patton Boggs (US) LLP and a partner at Pavia & Harcourt LLP. He has trial and appellate experience in many areas, including commercial contracts, art and antiquities law, banking, employment law, real estate, share-holder and partnership disputes, trade secret, trademark, information technology, and unfair competition. He is a member of or affiliated with New York State Bar Association Dispute Resolution Section, Arbitration Committee (past co-chair), New York City Bar Associa-tion Arbitration Committee (chair, 2018–__) and International Com-mercial Disputes Committee, Silicon Valley Arbitration & Mediation Center, International Arbitration Club of New York, and New York International Arbitration Center. Mr. Skulnik has been selected to New York Super Lawyers for Alternative Dispute Resolution (2012–18).

xvii

Table of Chapters

Chapter 1 Introduction

Chapter 2 Historical Background

Chapter 3 The FAA Statutory Framework

Chapter 4 Arbitrability and Jurisdiction

Chapter 5 Privacy and Confidentiality

Chapter 6 Commencing the Arbitration

Chapter 7 Selecting the Arbitrators

Chapter 8 The Preliminary Conference

Chapter 9 Discovery

Chapter 10 Motions

Chapter 11 Lead-Up to the Evidentiary Hearing

Chapter 12 The Evidentiary Hearing

Chapter 13 The Award

Chapter 14 Confirmation and Vacatur of Awards

Chapter 15 Arbitration Ethics

xix

Table of Contents

About the Editor ..............................................................................vii

About the Contributors ....................................................................ix

Table of Chapters .......................................................................... xvii

Recognizing Another Distinguished PLI Treatise ...................... xxix

Acknowledgment ......................................................................... xxxi

Chapter 1 IntroductionDavid C. Singer

§ 1:1 What Is Arbitration?........................................................ 1-1§ 1:2 The Arbitration Clause ................................................... 1-2§ 1:3 Benefits of Commercial Arbitration ................................. 1-2§ 1:4 Arbitration As More Efficient, Speedier Than

Litigation .............................................................................. 1-4§ 1:5 Arbitration Versus Litigation Practice .............................. 1-5

Chapter 2 Historical BackgroundDavid C. Singer

§ 2:1 Early Days of Arbitration ................................................. 2-1§ 2:2 Early Attitudes of U.S. Courts Toward Arbitration .......... 2-3§ 2:3 The Rise of Arbitration in the Twentieth Century ........... 2-4§ 2:4 Federal Legislation ........................................................... 2-5

Chapter 3 The FAA Statutory FrameworkMichael Young & Clif f Bloomf ield

§ 3:1 Introduction .................................................................... 3-1§ 3:2 Purposes of the FAA ........................................................ 3-2§ 3:3 Scope of the FAA ............................................................. 3-5§ 3:4 Concurrent Jurisdiction of State and

Federal Courts .............................................................. 3-10§ 3:4.1 State Jurisdiction .................................................... 3-10§ 3:4.2 Federal Jurisdiction ................................................. 3-10

xx


§ 3:5 Preemption of State Law by the FAA ............................. 3-16§ 3:5.1 Preemption of State Law Barring Arbitration

of Claims................................................................ 3-16§ 3:5.2 Preemption of State Procedural Law Impacting

Arbitration ............................................................. 3-18§ 3:6 Parties’ Choice of Governing Law .................................. 3-19

Chapter 4 Arbitrability and JurisdictionMarc Goldstein

§ 4:1 Introduction .................................................................... 4-2§ 4:2 Who Decides Arbitrability Issues? ................................... 4-3

§ 4:2.1 Procedural Context in Which the Question Arises ........................................................ 4-3

§ 4:2.2 Baseline Principle: Arbitrability Is Decided by the Courts ........................................................... 4-4

§ 4:2.3 Influence of Federal Pro-Arbitration Policy When Courts Decide Arbitrability Issues ................. 4-5

§ 4:3 Deviations from the Baseline Principle: The Arbitrability of Arbitrability ............................................. 4-7

§ 4:3.1 The Separability Principle ........................................ 4-7§ 4:3.2 The Delegation Principle .......................................... 4-7§ 4:3.3 Arbitration Rules As “Clear and Unmistakable

Evidence” of Delegation ........................................... 4-8§ 4:3.4 Severability of Clause Delegating Arbitrability

to the Arbitrator ....................................................... 4-9§ 4:4 Judicial Review When Arbitrators Rule on Arbitrability

Pursuant to a Valid Delegation ...................................... 4-10§ 4:5 “Gateway” Procedural Issues and Preconditions to

Arbitrating the Merits ................................................... 4-12§ 4:6 State Laws Inhibiting Arbitration .................................. 4-13

§ 4:6.1 General Principles .................................................. 4-13§ 4:6.2 Whether the Substantive Command of FAA

Section 2 Applies .................................................... 4-14§ 4:6.3 No General Preemption of State Laws

Concerning Arbitration .......................................... 4-15§ 4:6.4 Effect of the Parties’ Express Adoption of State

Arbitration Law ...................................................... 4-15§ 4:6.5 Whether the Parties Have in Fact Adopted

State Arbitration Law ............................................. 4-16§ 4:7 State Laws Requiring a Nonarbitral Forum Based on

Subject Matter ............................................................... 4-18§ 4:8 State Laws Requiring Special Content in an

Arbitration Agreement .................................................. 4-18

xxi

Table of Contents

§ 4:9 State Law Rules Limiting Contractual Waivers of Collective Arbitration .................................................... 4-19

§ 4:10 State Law Rules of Contract Interpretation .................... 4-20§ 4:11 Ongoing Tension in State Courts Between State Law

and FAA ........................................................................ 4-21§ 4:12 Conflicts Between the Arbitration Agreement and

Other Federal Law ......................................................... 4-22§ 4:12.1 General Principles .................................................. 4-22§ 4:12.2 Collective Action Waivers As a Practical

Limitation on Asserting Federal Statutory Claims .................................................... 4-23

§ 4:13 Collective Action Waivers and the National Labor Relations Act ................................................................. 4-23

§ 4:14 Parties That Did Not Sign the Arbitration Agreement ..................................................................... 4-25

§ 4:14.1 General Principles .................................................. 4-25§ 4:14.2 Equitable Estoppel .................................................. 4-26

[A] Estoppel Against a Signatory to the Agreement ....... 4-26[B] Estoppel Binding Signatory to Arbitrate with

Employees of Other Signatory ................................ 4-27[C] Estoppel Against Nonsignatory Based on

“Direct Benefit” or “Detrimental Reliance” ............ 4-28§ 4:14.3 Alter Ego ................................................................ 4-28

§ 4:15 Assignment and Assumption ........................................ 4-29§ 4:16 Third-Party Beneficiary .................................................. 4-30§ 4:17 Incorporation by Reference ............................................ 4-30§ 4:18 Agency........................................................................... 4-31

Chapter 5 Privacy and ConfidentialityLaura A. Kaster

§ 5:1 Generally ......................................................................... 5-1§ 5:2 Privacy of the Process Does Not Assure

Confidentiality ................................................................ 5-2§ 5:3 Impact of Provider Rules on Confidentiality

Obligations of Participants .............................................. 5-3§ 5:4 Impact of State Law on Confidentiality ........................... 5-5§ 5:5 The Special Case of Patent Arbitration ............................ 5-7§ 5:6 Court Proceedings ........................................................... 5-7§ 5:7 Preserving Confidentiality in Orders and

Confidentiality Agreements ............................................. 5-9§ 5:7.1 Protective Measures ............................................... 5-10§ 5:7.2 End-of-Process Procedures ...................................... 5-11

§ 5:8 Conclusion .................................................................... 5-12

xxii


Chapter 6 Commencing the ArbitrationDavid C. Singer

§ 6:1 Procedural Rules Governing Commencement of Arbitration ...................................................................... 6-1

§ 6:1.1 Revised Uniform Arbitration Act .............................. 6-2§ 6:2 Applicable Rules of Arbitral Institutions .......................... 6-4

§ 6:2.1 American Arbitration Association ............................ 6-4§ 6:2.2 JAMS ........................................................................ 6-5§ 6:2.3 International Institute for Conflict Prevention

and Resolution ......................................................... 6-5§ 6:3 Case Law Addressing Service and Contents of

Arbitration Demands ...................................................... 6-6§ 6:3.1 Consent to Jurisdiction and Due Process ................. 6-6§ 6:3.2 Inadequate Notice of an Arbitration

Proceeding As Grounds for Vacating Award .............. 6-9§ 6:4 Payment of Fees ............................................................. 6-12

Chapter 7 Selecting the ArbitratorsHarrie Samaras

§ 7:1 Overview ......................................................................... 7-2§ 7:2 Selection Framework: The Agreement and the

Organizational Rules ....................................................... 7-3§ 7:3 Selection Criteria ............................................................. 7-5

§ 7:3.1 Impartiality and Independence ................................. 7-7§ 7:3.2 Arbitration Skills ...................................................... 7-8§ 7:3.3 Availability ............................................................... 7-9§ 7:3.4 Personality and Disposition .................................... 7-10§ 7:3.5 Preparedness and Diligence .................................... 7-11§ 7:3.6 Expertise and Industry Experience .......................... 7-11§ 7:3.7 Respect and Reputation .......................................... 7-13§ 7:3.8 Diversity ................................................................ 7-13§ 7:3.9 Special Considerations for Neutral

Party-Appointed Arbitrators .................................... 7-14§ 7:4 Research and Due Diligence .......................................... 7-16

§ 7:4.1 Biographies or Resumes from Arbitration Institutions ............................................................ 7-16

§ 7:4.2 Online Resources and Social Media ........................ 7-16§ 7:4.3 Word of Mouth from Trusted Sources..................... 7-18§ 7:4.4 Pre-Selection Questions.......................................... 7-19§ 7:4.5 Interviewing Prospective Arbitrators ....................... 7-19

§ 7:5 Approaches for Selecting Arbitrators ............................. 7-23§ 7:5.1 Ad Hoc (Nonadministered) Arbitrations ................. 7-24

xxiii

Table of Contents

§ 7:5.2 Rules in Administered Proceedings ......................... 7-26[A] AAA Rules .............................................................. 7-26[B] JAMS Comprehensive Arbitration Rules and

Procedures .............................................................. 7-28[C] CPR Administered Arbitration Rules ...................... 7-28

§ 7:6 Disclosures and Disqualification ................................... 7-30

Chapter 8 The Preliminary ConferenceBarbara Reeves

§ 8:1 Importance of the Preliminary Conference ...................... 8-2§ 8:2 Timing ............................................................................ 8-2§ 8:3 Participants and Logistics ................................................ 8-3§ 8:4 Topics to Be Covered ....................................................... 8-3

§ 8:4.1 Rules and Checklists ................................................ 8-3§ 8:4.2 Party Identity ............................................................ 8-6§ 8:4.3 Claims, Defenses, Pleadings, and Amendments ....... 8-6§ 8:4.4 Arbitration Agreement ............................................. 8-6§ 8:4.5 Applicable Procedural Law, Substantive Law,

and Rules.................................................................. 8-7§ 8:4.6 Arbitrability .............................................................. 8-7§ 8:4.7 Threshold Issues or Preconditions ............................ 8-7§ 8:4.8 Interim Measures ..................................................... 8-7§ 8:4.9 Consolidation and Joinder ........................................ 8-8§ 8:4.10 Bifurcation ............................................................... 8-8§ 8:4.11 Motions .................................................................... 8-8§ 8:4.12 Exchange of Information .......................................... 8-8§ 8:4.13 Prehearing Schedules and Deadlines ........................ 8-9§ 8:4.14 Expert Witness Issues ............................................... 8-9§ 8:4.15 Prehearing Submissions ........................................... 8-9§ 8:4.16 Scheduling of the Hearing and Hearing Logistics ...... 8-10§ 8:4.17 Subpoenas .............................................................. 8-10§ 8:4.18 Manner of Testimony at the Hearing ...................... 8-11§ 8:4.19 Nature of the Award ............................................... 8-11§ 8:4.20 Post-Hearing Submissions ...................................... 8-11§ 8:4.21 Other Matters ........................................................ 8-11

§ 8:5 Subsequent Preliminary Conferences ............................ 8-11§ 8:6 Preliminary Conference Order ....................................... 8-12

Chapter 9 DiscoveryMichael Young & Cliff Bloomfield

§ 9:1 Introduction .................................................................... 9-2§ 9:2 Prehearing Party Discovery Under Applicable Statutes ...... 9-5

xxiv


§ 9:3 Nonparty Discovery ........................................................ 9-8§ 9:3.1 Subpoena Power ....................................................... 9-8§ 9:3.2 Service, Production, and Enforcement of

Nonparty Subpoenas .............................................. 9-19§ 9:3.3 Signing of Subpoena ............................................... 9-22§ 9:3.4 Service of Subpoena ................................................ 9-22§ 9:3.5 Nonparty Objections .............................................. 9-24

§ 9:4 Pre-Arbitration Discovery .............................................. 9-27§ 9:5 The Arbitration Clause (Selecting Rules and

Customization) ............................................................. 9-29§ 9:5.1 Customization ....................................................... 9-32

§ 9:6 Role of the Arbitrator..................................................... 9-32§ 9:6.1 Arbitrator Authority and Discretion ....................... 9-32§ 9:6.2 Inherent Power of Arbitrators ................................. 9-36

§ 9:7 Failure to Comply with Discovery Orders ..................... 9-36§ 9:7.1 Exclusion of Evidence, Adverse Inferences,

and Dismissal of Claims ........................................ 9-37§ 9:7.2 Imposition of Sanctions for Discovery Abuses ........ 9-38

§ 9:8 Vacatur Based on Discovery-Related Issues .................... 9-41§ 9:8.1 Routine Denial of Motions to Vacate Based on

Discovery Determinations ..................................... 9-41§ 9:8.2 Monetary Sanctions Arising from

Discovery Abuse ..................................................... 9-45§ 9:8.3 Adverse Inferences Arising from

Discovery Abuses ................................................... 9-46§ 9:8.4 Exceptions to the General Practice ......................... 9-49

Chapter 10 MotionsJohn Wilkinson

§ 10:1 Introduction .................................................................. 10-1§ 10:2 Dispositive Motions ...................................................... 10-2

§ 10:2.1 Historical Factors Discouraging Dispositive Motions .................................................................. 10-2

[A] Growing Acceptability of Dispositive Motions ....... 10-3[B] Recommendations .................................................. 10-6

§ 10:3 Discovery Motions ........................................................ 10-7§ 10:4 Motions to Adjourn Hearing ....................................... 10-10§ 10:5 Motions to Bifurcate Liability and Damages ................ 10-12§ 10:6 Conclusion .................................................................. 10-13

xxv

Table of Contents

Chapter 11 Lead-Up to the Evidentiary HearingPhilip D. O’Neill, Jr.

§ 11:1 Introduction .................................................................. 11-1§ 11:2 Prehearing Memoranda ................................................. 11-2§ 11:3 Fact Stipulations ............................................................ 11-3§ 11:4 Prehearing Consideration of Evidentiary Issues ............. 11-4

§ 11:4.1 Which Rules Will Apply ......................................... 11-4§ 11:4.2 Impact of Arbitrator Background ............................ 11-5§ 11:4.3 Some Common Evidentiary Issues ......................... 11-5§ 11:4.4 Nonparty Witnesses ............................................... 11-6§ 11:4.5 Hostile Witnesses ................................................... 11-8

§ 11:5 Party Representatives ..................................................... 11-9§ 11:6 Mechanics and Logistics of Evidentiary Presentation .... 11-9

§ 11:6.1 Generally ................................................................ 11-9§ 11:6.2 Exhibits ................................................................ 11-10§ 11:6.3 Witnesses ............................................................. 11-12§ 11:6.4 Experts and Their Reports .................................... 11-13

§ 11:7 Conclusion .................................................................. 11-15

Chapter 12 The Evidentiary HearingJohn Gardiner, Barry H. Garfinkel, & Gunjan Sharma

§ 12:1 Evidentiary Hearings in Arbitration Compared to Trials ......................................................................... 12-2

§ 12:2 Structure of the Evidentiary Hearing ............................. 12-2§ 12:2.1 Typical Stages ......................................................... 12-2§ 12:2.2 Allocation of Time and the “Chess-Clock”

Method................................................................... 12-3§ 12:2.3 Logistics, Including Transcription and

Translation Services ............................................... 12-4§ 12:3 Opening Statements ...................................................... 12-4

§ 12:3.1 Content and Purpose .............................................. 12-4§ 12:3.2 Compared to Opening Statements in Court ........... 12-5§ 12:3.3 Responding to Arbitrator Questions ....................... 12-5§ 12:3.4 Use of Demonstratives ........................................... 12-6

§ 12:4 Fact Witnesses ............................................................... 12-7§ 12:4.1 General Observations ............................................. 12-7§ 12:4.2 Written Statements As Direct Testimony ............... 12-7§ 12:4.3 Infrequent Use of Depositions ................................ 12-8§ 12:4.4 Cross-Examination ................................................. 12-8§ 12:4.5 The Tribunal’s Involvement in Examination .......... 12-9

§ 12:5 Expert Witnesses ........................................................... 12-9§ 12:5.1 Structure of Examination ....................................... 12-9

xxvi


§ 12:5.2 Application of Daubert and Frye Standards .......... 12-10§ 12:5.3 Independence and Impartiality ............................. 12-11§ 12:5.4 Witness Conferencing .......................................... 12-12§ 12:5.5 Tribunal-Appointed Experts .................................. 12-12

§ 12:6 Some Evidentiary Matters ........................................... 12-13§ 12:6.1 Flexible Rules of Evidence ..................................... 12-13§ 12:6.2 Admission of Documents ..................................... 12-14

§ 12:7 Closing Arguments...................................................... 12-14§ 12:8 Post-Hearing Briefs and the Close of Proceedings ........ 12-16§ 12:9 Conclusion .................................................................. 12-16

Chapter 13 The AwardDavid C. Singer & Christina G. Hanson

§ 13:1 Introduction .................................................................. 13-2§ 13:2 Finality .......................................................................... 13-2

§ 13:2.1 Generally ................................................................ 13-2§ 13:2.2 Doctrine of Functus Officio .................................... 13-8§ 13:2.3 Exceptions to the Doctrine of Functus Officio ...... 13-10§ 13:2.4 Reservation of Jurisdiction ................................... 13-13§ 13:2.5 Precedential Value of Award ................................. 13-14

§ 13:3 Scope of the Arbitrator’s Authority .............................. 13-15§ 13:4 Grant of Relief ............................................................. 13-17

§ 13:4.1 Discretion of Arbitrators ...................................... 13-17§ 13:4.2 Interest ................................................................. 13-17§ 13:4.3 Attorneys’ Fees ..................................................... 13-18§ 13:4.4 Costs .................................................................... 13-21§ 13:4.5 Punitive Damages and Sanctions ......................... 13-21

§ 13:5 Majority or Unanimity; Dissent .................................. 13-23§ 13:6 In Writing and Signed by the Arbitrators ..................... 13-24§ 13:7 Time Limits for Rendering the Award ......................... 13-25§ 13:8 Service of the Award .................................................... 13-29§ 13:9 Partial Final, Interim, and Consent Awards ................. 13-29

§ 13:9.1 Partial Final Awards ............................................. 13-29§ 13:9.2 Interim Relief ....................................................... 13-33§ 13:9.3 Consent Awards and Awards by Confession ......... 13-37

§ 13:10 Forms of Award ........................................................... 13-37§ 13:10.1 Generally .............................................................. 13-37§ 13:10.2 Standard Award .................................................... 13-39§ 13:10.3 Reasoned Award ................................................... 13-39§ 13:10.4 Findings of Fact and Conclusions of Law.............. 13-40

§ 13:11 Conclusion .................................................................. 13-41

xxvii

Table of Contents

Chapter 14 Confirmation and Vacatur of AwardsAbigail Pessen

§ 14:1 Overview of Requirements for Confirming and Vacating Awards ............................................................ 14-2

§ 14:1.1 Generally ................................................................ 14-2§ 14:1.2 Need to Establish Subject Matter Jurisdiction

in Federal Court ..................................................... 14-3§ 14:1.3 Venue ..................................................................... 14-4§ 14:1.4 Role of State Courts ............................................... 14-4§ 14:1.5 Confidentiality ....................................................... 14-5

§ 14:2 Confirmation of an Award ............................................ 14-5§ 14:2.1 Generally ................................................................ 14-5§ 14:2.2 Personal Jurisdiction and Service

Requirements ......................................................... 14-6§ 14:2.3 Time Limits and Procedural Requirements ............ 14-7

§ 14:3 Vacatur of an Award ...................................................... 14-8§ 14:3.1 Generally ................................................................ 14-8§ 14:3.2 Time Limits ........................................................... 14-8§ 14:3.3 Grounds Under the Federal Arbitration Act ........... 14-9

[A] Corruption, Fraud, or Undue Means ...................... 14-9[B] Evident Partiality or Corruption ........................... 14-10[C] Refusal to Postpone the Hearing or to Hear

Evidence, or Other Prejudicial Misbehavior .......... 14-11[D] Arbitrators Exceeded Their Powers or

Imperfectly Executed Them ................................. 14-12§ 14:3.4 Nonstatutory Grounds for Vacatur:

“Manifest Disregard” ............................................ 14-13§ 14:3.5 Procedural Requirements for Motion to Vacate ..... 14-15§ 14:3.6 State Law Grounds for Vacatur ............................. 14-15

§ 14:4 Modifying or Correcting an Award .............................. 14-16

Chapter 15 Arbitration EthicsRichard L. Mattiaccio & Steven Skulnik

§ 15:1 Characteristics of the Arbitrator .................................... 15-2§ 15:1.1 Judicial Characteristics ........................................... 15-2§ 15:1.2 Contractual Characteristics .................................... 15-2§ 15:1.3 Advocate for Appointing Party ................................ 15-3

§ 15:2 Arbitrator Obligations ................................................... 15-4§ 15:2.1 Sources of Obligations ............................................ 15-4

[A] Federal Arbitration Act ........................................... 15-4[B] State-Specific Laws or Codes .................................. 15-5

xxviii


§ 15:2.2 Nature of Obligations ............................................. 15-5[A] Investigation for Potential Conflicts ....................... 15-5[B] Disclosure .............................................................. 15-6[C] Confidentiality ....................................................... 15-6[D] Limited Ex Parte Communications ......................... 15-6[E] Due Process ............................................................ 15-7[F] Limited Reliance on Tribunal Secretaries and

Assistants ............................................................... 15-8§ 15:2.3 Canon X Arbitrators ............................................... 15-8

§ 15:3 Counsel Obligations ...................................................... 15-9§ 15:4 Judicial Remedies for Unethical Arbitrator Conduct .... 15-11

§ 15:4.1 Limitations on Interlocutory Judicial Challenges ............................................................ 15-11

§ 15:4.2 Vacatur for Arbitrator Misconduct or Partiality...... 15-11§ 15:5 Challenge Procedures in Institutional Arbitral Rules ..... 15-11§ 15:6 Waiver ......................................................................... 15-12

Table of Authorities ....................................................................... T-1

Index ............................................................................................... I-1

xxix

Recognizing Another Distinguished PLI Treatise

Practising Law Institute wishes to recognize American Arbitration: Principles and Practice, by Robert von Mehren, Steven J. Burton, and George W. Coombe, Jr., which was published in 2008. Mr. von Mehren, who served as chair of PLI’s Board of Trustees, was the animating force behind that book.*1He noted, in its first chapter, that arbitration had become “a serious rival to the judicial system in resolving com-mercial disputes,” and that the last decades of the twentieth century saw expanded arbitral institutions and increasing numbers of lawyers practicing in the field. He found “no reason to doubt that commercial arbitration will continue to grow in the twenty-first century.”

In publishing David Singer’s Arbitrating Commercial Disputes in the United States, PLI hopes to continue to serve the profession with information and insights about the arbitration process.

* American Arbitration is out of print, but it remains available on PLI PLUS, our database of publications.

xxxi

Acknowledgment

In addition to co-authoring chapter 15, Steven Skulnik contributed excellent co-editing for the other chapters of the treatise.

I am very grateful to Steven for his insightful editorial work on the treatise.

DaviD C. Singer