B. Powers of the Arbitrator

• Jurisdiction: New York

B. Powers of the Arbitrator

The arbitrator has broad powers to find facts,¹⁰⁶ to decide questions of law and to fashion an award.¹⁰⁷ All determinations by the arbitrator are conclusive,¹⁰⁸ unless violative of CPLR 7511, which sets forth the grounds for vacating and modifying an award.¹⁰⁹ In any hearing conducted before a panel of arbitrators, a decision by a majority of the panel will be binding.¹¹⁰ Although a majority is sufficient to determine a question or render an award, the hearing itself must be conducted by and before the entire panel.¹¹¹

An arbitrator may award attorney fees incurred in connection with an arbitration if recoupment of attorney fees is authorized by statute¹¹² or provided for in an enforceable contract.¹¹³ Judicial review of an arbitrator's award of attorney fees is deferential.¹¹⁴ Courts are not authorized to revisit an arbitrator's assessment of the evidence, interpretation of the contract or reasoning in fashioning the award.¹¹⁵ Moreover, unless the arbitration agreement specifies to the contrary, an arbitration panel is not required to set forth the basis for its decision.¹¹⁶

An arbitrator's powers to fashion an award include the power to appoint a temporary receiver.¹¹⁷

Although an arbitration award cannot be enforced until it has been confirmed by the court, it nonetheless is entitled to res judicata and collateral estoppel effect.¹¹⁸

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Notes:

^[106] See CSP Tech. Inc. v. Hekal, 57 A.D.3d 372, 869 N.Y.S.2d 449 (1st Dep't 2008) (holding that an arbitrator had the authority under rules of the arbitral forum, to order the parties to produce documents prior to the arbitration proceeding).

^[107] Nespola v. Mgmt. Network Grp., 101 A.D.3d 437, 438, 955 N.Y.S.2d 575 (1st Dep't 2012) ("[J]udicial review [of an arbitrator's venue determination] is confined to a limited inquiry as to whether the venue determination complied with a minimal constitutional standard of fair dealing, or, in extreme cases, whether the venue determination was made in bad faith." (internal quotation marks omitted)); see Fitzgerald v. Fahnestock & Co., 48 A.D.3d 246, 247, 850 N.Y.S.2d 452 (1st Dep't 2008) ("An arbitrator 'may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be and making an award reflecting the spirit rather than the letter of the agreement.'") (internal citations omitted); Korein v. Rabin, 29 A.D.2d 351, 356, 287 N.Y.S.2d 975 (1st Dep't 1968) ("[Q]uestions of law and fact are for the arbitrators."); In re Bay Iron Works, Inc., 17 A.D.2d 804, 804, 232 N.Y.S.2d 746 (1st Dep't 1962) ("[I]t was within the competence of the arbitrator to pass on all questions of law and fact and if they were erroneously adjudicated the award may not be disturbed except on statutory grounds"); see also Cheng v. Oxford Health Plans, Inc., 84 A.D.3d 673, 923 N.Y.S.2d 533 (1st Dep't 2011) ("The arbitration panel neither exceeded its powers nor manifestly disregarded the law in certifying the class."). The effect of any prior proceedings on a subsequent arbitration is also a question to be decided by the arbitrator in that forum. City Sch. Dist. of the City of Tonawanda v. Tonawanda Educ. Ass'n, 63 N.Y.2d 846, 848, 482 N.Y.S.2d 258 (1984); see In re City of Buffalo , 96 A.D.3d 1436, 1436, 946 N.Y.S.2d 367 (4th Dep't 2012) (an arbitrator has the authority to determine issues of standing). An arbitrator charged with interpreting a contract may define terms that the contract uses but does not define. See Bd. of Educ. of the City Sch. Dist. of the City of N.Y. v. Mulgrew, 106 A.D.3d 551, 553, 967 N.Y.S.2d 8 (1st Dep't 2013) (holding arbitrator was "well within his authority to define [a contract term] not defined by the collective bargaining agreement he was charged with interpreting"). However, where an agreement "contains an express restriction upon the powers of the arbitrator, the limitation will be upheld." City of N.Y. by Office of Mun. Labor Relations v. Davis, 146 A.D.2d 480, 482, 536 N.Y.S.2d 757 (1st Dep't 1989). But see N.Y. City...