Chapter 12 - § 12.7 • DEFAULT: PROCEEDING WITH ARBITRATION WHEN RESPONDENT FAILS TO APPEAR

• Jurisdiction: Colorado

§ 12.7 • DEFAULT: PROCEEDING WITH ARBITRATION WHEN RESPONDENT FAILS TO APPEAR

In civil litigation, if a plaintiff files and serves a complaint, and the defendant fails to respond within the allotted time, the rules of civil procedure provide a remedy: request entry of default and move for judgment by default supported by affidavit or testimony to establish a prima facie case. The court can then enter judgment in favor of the plaintiff and against the non-appearing defendant.²⁸

But what happens in arbitration if, after service, the respondent fails to appear, or affirmatively states that he or she will not appear? If there is an AAA arbitration governed by the Commercial Arbitration Rules, Rule R-31, "Arbitration in the Absence of a Party or Representative," defines a procedure similar to the judicial procedure:

Unless the law provides to the contrary, the arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement. An award shall not be made solely on the default of a party. The arbitrator shall require the party who is present to submit such evidence as the arbitrator may require for the making of an award.

There is little case law as to what leeway the arbitrator has with respect to determining what constitutes "evidence as the arbitrator may require."

The FAA does not have provisions for default proceedings. The CRUAA, C.R.S. § 13-22-215(3) (2016), provides for hearings: "The arbitrator may hear and determine the controversy upon the evidence produced even if a party who was duly notified of the arbitration proceeding does not appear."

The CRUAA, C.R.S. § 13-22-215(3) (2016), expressly provides that the arbitrator may hear and determine the controversy upon the evidence, notwithstanding the failure of a party to appear after proper notice of the hearing has been given. Thus, the procedure fundamentally is the same as under C.R.C.P. 55 and F.R.C.P. 55 for entry of a default and default judgment — the arbitrator determines whether the claimant has proven its case. The FAA is silent on the subject, but no doubt the common law allows the arbitrator to take similar action.

Similarly, AAA Commercial Arbitration Rule R-31 provides for proceeding with the arbitration when one party fails to appear. This rule generally will govern when incorporated into the arbitration agreement, and it does not appear to be in conflict with the Colorado statutes. Ultimately, the test may be...