Chapter 11 - § 11.8 • SCOPE AND DURATION OF ARBITRATOR'S AUTHORITY AND POWERS

• Jurisdiction: Colorado

§ 11.8 • SCOPE AND DURATION OF ARBITRATOR'S AUTHORITY AND POWERS

A valid and unwaived arbitration agreement deprives the court of subject matter jurisdiction; the dispute is in the sole jurisdiction of the arbitrator.⁷²

As discussed above, the arbitrator has the power to define the arbitration process to the extent not defined by the agreement of the parties or by the applicable statute and common law. Colorado courts have reaffirmed the principle that arbitrators are not bound by any particular substantive or procedural rules of law, unless the arbitration agreement so provides. An arbitrator may decide the dispute contrary to rules of law that would be applied by a court so long as there is no violation of an express term of the agreement to arbitrate.⁷³

See § 19.4.

§ 11.8.1—Arbitrator's Powers Over Parties And Representatives: Sanctions

Until recent years, arbitration was typically handled by the parties themselves, and representation by an attorney was not typical. Indeed, the authors of both the Federal Arbitration Act and the Uniform Arbitration Act concluded it was both necessary and desirable to guarantee a party's right to counsel.

As more attorneys became involved in arbitration, initially they were not trial lawyers. The informal and loose procedures followed made the skills and knowledge of the trial lawyer unnecessary. The non-trial lawyer generally felt comfortable in the arbitration environment.

However, today most parties in arbitration are represented by counsel. With that have come some of the problems associated with a very small minority of trial lawyers — lack of professionalism and lack of compliance with the customary rules of court conduct and procedures.

Thus, arbitration has increasingly moved to be more like litigation, and with that has come the attendant problems of litigation. However, it is still rare to have to answer the questions of whether and how an arbitrator should control a lawyer who is stepping outside the appropriate boundaries.

By far the vast majority of lawyers are professional in their dealings and all aspects of arbitration. Only a very few step beyond the accepted rules of professional conduct and professional custom — just as they do occasionally in litigation. This may involve violating the norms in taking depositions, interrupting or harassing witnesses, inappropriate conduct, rudeness, failure to comply with orders, or failure to cooperate in the procedural aspects of the proceeding.

The scope of this...