Resolution Roundtable

An arbitrator is encouraged (if not empaneled) to preserve the confidentiality of sensitive documents or information (e.g. as provided in most institutional rules). Where an award involves a discussion of such confidential and sensitive material (e.g. personal or medical details), should the arbitrator be guided by certain protocols or procedures? If yes, provide examples. Does the analysis change where it appears the award is more likely to be dealt with in subsequent court proceedings for vacatur, confirmation, or the like?

What are your thoughts/comments? Please provide below.

Arbitrators sometimes need to review highly confidential and privileged information that could potentially bias the Tribunal and/or taint the process. Should an eDiscovery Special Master be appointed independent of the Tribunal to review such discovery?

Please provide your thoughts/comments below.

Section R-4 (c) of the AAA Commercial Arbitration Rules and Mediation Procedures states:

It is the responsibility of the filing party to ensure that any conditions precedent to the filing of a case are met prior to filing for an arbitration, as well as any time requirements associated with the filing. Any dispute regarding whether a condition precedent has been met may be raised to the arbitrator for determination.

Should arbitral institutions have an internal body to vet applicable jurisdictional filing requirements prior to case initiation and appointment of the Tribunal? To the degree such requirements are not met, what ought to be next steps?

Please provide your thoughts/comments below.

In late April 2017, the New York State Senate introduced Assembly Bill
A7445.

The Bill is available here: AB A7445.

The proposed bill primarily involves consumer arbitration and prohibition of certain contractual agreements to arbitrate personal injury and wrongful death claims. Notwithstanding, is such legislation, introduced with several prohibitions, harmful to arbitration at large?

Please provide your thoughts/comments below.

In an institutional arbitration with three presiding arbitrators, should there be a preferred process for Chair selection (e.g. institution decides; arbitrators decide; default to highest ranked arbitrator; default to judge, if present)?

Please provide your thoughts/comments below.

Increasingly, the rules of international arbitral institutions (e.g. ICC, ICDR, JAMS, etc.) require the appointment of a sole arbitrator where the parties have not agreed on the number of neutrals. The domestic rules of such institutions do not always mirror a sole arbitrator default (e.g. AAA Commercial Rules default to three arbitrators if the claim is over $1,000,000). Does one arena (international or domestic) have the better approach?

Please provide your thoughts/comments below.

All parties to arbitration can be guilty of instigating delay tactics at various stages of the arbitral proceedings. Such can add cost and veer the proceedings off track. What tactics have you seen? How can the Tribunal/Opposing Counsel minimize or circumvent such tactics?

Please provide your thoughts/comments below.

Taking direction from the courts and clients, various arbitral institutions have introduced emergency measures within their rules. Are such measures necessary and effective? Does one forum provide greater success with emergency relief - as between courts and arbitral institutions, and as between international and domestic? Why?

Please provide your thoughts/comments below.

Where an arbitration clause requires three arbitrators, should the Chair exclusively handle discovery disputes? Consider also whether the Chair makes this determination sua sponte or the parties request the same. What are the positives and/or negatives of such an arrangement?

Please provide your thoughts/comments below.

By Gerald M. Levine

Provider and Arbitrator Immunity.pdf