Chapter 11 - § 11.11 • IMMUNITY OF ARBITRATOR (COMPETENCY TO TESTIFY, ATTORNEY FEES AND COSTS)

• Jurisdiction: Colorado

§ 11.11 • IMMUNITY OF ARBITRATOR (COMPETENCY TO TESTIFY, ATTORNEY FEES AND COSTS)

The FAA does not contain provisions concerning the immunity of an arbitrator with respect to competency to testify and related issues. However, an extensive body of common law has developed, and at least one Colorado trial court has held that the American Arbitration Association as administrator is immune.⁸⁴

FAA

The common law both under the FAA and under state arbitration statutes has firmly established the immunity of arbitrators. The concept of immunity for those having "functional comparability" to judges was defined by the U.S. Supreme Court in Butz v. Economou.⁸⁵ It was thereafter applied in Antoine v. Byers & Anderson,⁸⁶ defining immunity as extending to those engaged in "performance of the function of resolving disputes between parties or of authoritatively adjudicating private rights."⁸⁷ See also Corey v. New York Stock Exchange, holding arbitrators and the boards that sponsor arbitration are immune.⁸⁸

The Tenth Circuit acknowledged the doctrine of arbitral immunity where "the claim, regardless of its nominal title, effectively [sought] to challenge the decisional act of an arbitrator or arbitration panel."⁸⁹ In addition, the court also stated that the doctrine also applies to arbitration administrators.

The Third Circuit dismissed an antitrust claim against an arbitrator who rendered an award asserted by the plaintiff to constitute enforcement of an agreement in restraint of trade.⁹⁰ The arbitrator was immune under federal law.

This immunity is not only for civil liability, but may also extend to processes such as subpoenas with respect to cases in which they served as arbitrator.⁹¹ This common law immunity has extended to arbitration organizations that administer arbitrations.⁹²

In Salt Lake Tribune Publishing Co., LLC v. Management Planning, Inc.,⁹³ the Tenth Circuit impliedly acknowledged the existence of common law immunity and reversed, holding that because the appraisal procedure involved in that case was not an "arbitration" within the scope of the FAA, the appraiser did not have arbitral immunity.

CRUAA

The CRUAA, C.R.S. § 13-22-214 (2016), "Immunity of arbitrator - competency to testify -attorney fees and costs," provides immunity to arbitrators:

(1) An arbitrator or an arbitration organization acting in the capacity of an arbitrator is immune from civil liability to the same extent as a judge of a court of this state acting in a judicial capacity.
(2)

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