Are Rules Allowing Arbitral Sanctions a Mirage?

Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly Hayes

Paul Bennett Marrow, Adjunct Professor at New York Law School, Member of the Commercial Panel for theAmerican Arbitration Association, ADR Systems, Public Member of the FINRA Panel of Neutrals, and Fellow at the Chartered Institute of Arbitrators in London, England, has published “Are Rules Allowing Arbitral Sanctions a Mirage?,” 88 Journal New York State Bar Association 28, June 2016.  In his publication, Mr. Morrow discusses whether an arbitrator may use permissive procedures to impose sanctions beyond those currently available by judicial decree.

Here is the abstract:

This article examines the impact permissive procedures have on an arbitrator’s ability to maintain order. The suggestion made is that the new rules offer nothing that isn’t already available by judicial decree. While the effort to assist the arbitrator is laudable, no administrator can go further than the limitations mandated by 9 U.S.C. §§ 1-16, the Federal Arbitration Act (FAA), as interpreted by courts. Anyone who does so faces vacatur and in extreme cases a finding that the action is “misconduct” under FAA § 10(a)(3). Given this structure, both the administrators and arbitrators face a simple choice: (1) Go no further than what courts have already deemed acceptable or (2) undertake to fashion a new untested “sanction” and hope that a court will support the effort. If the first alternative is favored, administrator rules allow what courts have already approved. If the second alternative is favored, administrator rules serve no purpose other than to empower an arbitrator to take a serious risk. If this analysis is correct, then the new rules are a mirage.

This and other articles written by Mr. Morrow may be downloaded for free from the Social Science Research Network.

  

                        author

Beth Graham

Beth Graham received a J.D. from the University of Nebraska College of Law in 2004 and a M.A. in Information Science and Learning Technologies from the University of Missouri in 2006. She also holds a B.S. in Public Administration from the University of Nebraska-Omaha. She is licensed to practice law… MORE >

Featured Mediators

ad
View all

Read these next

Category

Janis Publications Offers New Ken Cloke Book to Opinion Leaders

Janis Publications publishes Conflict Revolution: Mediating Evil, War, Injustice and Terrorism, by author, mediator and attorney Dr. Kenneth Cloke Santa Ana, CA, August 15, 2008 -- (PR.COM) -- Janis Publications...

By Kenneth Cloke
Category

“B” is for Bully: The ABC’s of Conflict Resolution

Here’s another familiar character. This is the kid who shook you down for your lunch money on the elementary school playground. The one who taunted you in gym whenever you...

By Victoria Pynchon
Category

Making Mistakes

From the Blog of Phyllis G. Pollack. Why do we make mistakes? This is a really good question and one that we have probably each asked ourselves more than once....

By Phyllis Pollack

Find a Mediator

X
X
X