Chapter § 8.04 Arbitration Rules

• Jurisdiction: United States
• Publication year: 2020

§ 8.04 Arbitration Rules

Parties must agree on the governing arbitration rules if they have weighed the considerations in favor of arbitration. These rules generally cover, among other things, the selection of the arbitrators, location of the arbitration, discovery rights, conduct of the merits hearing, timing and form of award, award decisional standards, and post-award relief. Parties may draft these rules from scratch, adopt a set of standard rules from an alternative dispute resolution (“ADR”) organization, or follow a hybrid approach, adopting some or all of the standard rules and drafting additional ones.

The latter approach allows parties to tailor the rules to their specific interests, carving out rights that will be important to them during and after the arbitration. Because the hybrid approach incorporates standard rules, parties are also assured that issues they might not have considered will still be covered. Knowing standard arbitration rules and the procedural differences among ADR administrators is crucial.

The following chart identifies arbitration rules for complex matters for three of the most commonly used administrators: American Arbitration Association (“AAA”); JAMS, Inc. (“JAMS”); and International Institute for Conflict Prevention & Resolution (“CPR”). The rules basically track the life cycle of an arbitration, from the initiation of the arbitration, through discovery and the merits hearing, and, finally, to the award and post-award process. Differences appear in the areas of confidentiality, arbitrator selection, discovery rights, subpoena powers, form of award and decisional standards, arbitration appeal procedure, and administrative fees. All of these organizations, however, allow parties to modify the rules by agreement.⁵²

AAA	JAMS	CPR
Initiation of Arbitration	Claimant serves “Demand” on respondent and files same with AAA (R-4(a)) or parties file written submission to arbitrate (R-4(d))	JAMS sends “Commencement Letter” confirming intention to arbitrate pursuant to pre-dispute contract or post-dispute agreement (R. 5)	Respondent receives “notice of arbitration” from claimant or parties agree to arbitration post-dispute (R. 3); CPR rules contemplate non-administered arbitration
Confidentiality	Subject to applicable law, hearings are private but persons with direct interests in arbitration are entitled to attend (R-25)	Same as AAA, plus JAMS and arbitrator shall maintain confidentiality of proceeding and award except in connection with judicial challenge to award; arbitrator may issue protective orders (R. 26)	CPR and arbitrator shall maintain confidentiality of proceeding, discovery, and arbitrator decisions except in connection with ancillary judicial proceedings; arbitrator may issue protective orders (R. 11, R. 20)
Relief Available	“[A]ny remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties, including, but not limited to, specific performance of a contract” (R-47)	Same as AAA (R. 24)	Same as AAA, plus remedy or relief must be “permissible under the law(s) or rules of law applicable to the dispute” (R. 10)
Interim Relief Available	“[A]rbitrator may take whatever interim measures he or she deems necessary, including injunctive	Same as AAA, without separate interim and emergency relief rules (R. 24)	“Tribunal may take such interim measures as it deems necessary, including measures for the preservation of
relief” (R-34); arbitrator authorized to issue interim awards (R-43); AAA “Optional Rules” available in connection with interim and emergency relief (O-1 through O-8)	assets, the conservation of goods or the sale of perishable good” (R. 13)
Claim Requirements	“[D]emand shall contain a statement setting...