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Jurisdictional Filing Requirements - What are your thoughts?

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.

Comments (12)

James Bowdish:

It is best that fulfillment of conditions precedent be examined early, preferably by the AAA. An inquiry should be made of filing party or counsel as to whether conditions precedent in the arbitration clause (such as mediation, negotiation, etc.) have been met or waived. If not, the filer should be advised to complete those tasks prior to officially filing the arbitration case. To wait till the appointment of an arbitrator just delays the process and causes unnecessary work for the arbitrator.

This appears to be a solution in search of a problem. Arbitrators rule on compliance with conditions precedent all the time (and other threshold issues such as time limits, notice, laches, and estoppel). I'm not aware of any problems with this practice.

Judge Gerald Harris:

It would make economic good sense to have issues of arbitral eligibility determined administratively if the issue is easily resolvable. However, if the answer is not obvious on its face R-4c would seem to delegate the determination to an arbitrator who should then be appointed for that purpose.

If a claimant has not complied with conditions precedent prior to filing, that is an issue that should be raised by the respondent and ruled upon by the Panel, as are all other jurisdictional matters.. If the respondent does not raise the issue, it is waived. The arbitral institution should not get involved in this, but rather leave it to the parties and the Tribunal.

William G. Bassler:

I have not found the issue of compliance with pre conditions to be a problem. Considering all that is now on the plate of the case administrator I don't think we need to add another administrative burden.

My Agenda for the preliminary conference includes this issue. The attorneys are aware of it. And it is easily satisfied and in my ten years of arbitrating since leaving the federal bench it always has been.

Not to worry is my answer.

Tad Deccker:

It is the responsibility of the Respondent to raise these issues. The arbitrator or panel will resolve them. It is an interpretation of the contract authorizing the arbitration.

I agree no changes to the rules or to the procedures are required.

Edwin H. Stern:

I agree with the above comments, favoring early and administrative determinations. However, if the matter goes forward the Respondent should be able to re-present any jurisdictional issue to the arbitrator or panel for re-consideration. It is a critical issue for determination on the merits.

Paul Peter Nicolai:

Having the administrator handle this will create a jurisdictional loop. The only action the administrator can take is to refuse to accept the filing. If the administrator refuses to accept the filing, there is no arbitrator to make any other decision.

If the case is filed the arbitrator can hear any preliminary motion on whether the preconditions to filing were met. It may or may not be that the matter has to be dismissed. Whether it needed to be dismissed would depend on what precondition had not been met.

The administrator rules probably should have a provision in them that says that the failure to meet a precondition to filing arbitration is not an impediment to jurisdiction so that when the arbitration agreement adopts the rules, it adopts jurisdiction to hear these preliminary motions. Otherwise, the argument will be in a court proceeding later that since the preconditions were not met, there was no jurisdiction for the arbitrator to do anything which means that the arbitration award should be vacated. That will simply yield more needless litigation.

Anonymous:

The creation of an administrative body might increase the time and cost of the arbitration. I do not know the percentage of cases that would benefit from this review but from my experience it would appear to be a small fraction many of which can easily handled by the arbitrator.

David Andrew Byrne:

Jurisdictional filing requirements are often determined by the facts unique to each case. The current process for raising these issues with the Arbitrator works well. Creating another layer of case evaluation would seem to complicate what is now a straightforward and efficient process.

Anonymous:

This does not seem to be a significant issue. Its resolution may depend on the determination of culpable party(ies,) which may require some brief evidence and/or argument. It is better to have the arbitrator(s) decide this issue than to burden the staff with it, who probably have enough on their plates.

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