Chapter 14 - § 14.5 • REVIEW AND ENFORCEMENT OF INTERIM|PROVISIONAL RELIEF
| Jurisdiction | Colorado |
Generally, entry of an interim award does not divest the arbitrator of jurisdiction over the dispute (such as occurs upon entry of a final award). Thus, it appears that an arbitrator can enforce his or her own interim award. For example, if the arbitrator enters an interim award enjoining certain actions by the respondent, it would seem that an arbitrator could enforce that injunction, if violated, by awarding monetary sanctions against the respondent and in favor of the claimant. On the other hand, an arbitrator does not have contempt powers50 or authority to direct a marshal or sheriff. Hence, there are circumstances in which the prevailing party may want judicial enforcement for violations of the interim award.
Of course, the arbitrator may issue some interim orders that the arbitrator must enforce himself or herself. Examples might include discovery/disclosure orders to parties. It is anticipated that an arbitrator has enforcement powers analogous to C.R.C.P. 37. The CRUAA has a general provision in C.R.S. § 13-22-217(4) (2016).
While there is little case law, it is likely that a court would be extremely reluctant to become involved in pre-award procedures, rulings, and orders of an arbitrator. This is somewhat comparable to an appellate court involvement in trial court proceedings prior to judgment. The Missouri Court of Appeals held that a trial court had no jurisdiction to hear an appeal of an arbitrator's ruling denying a request to conduct 22 depositions:
In order to secure the advantages of arbitration and to preserve arbitration as a substitute for, and not as a mere prelude to, litigation, judicial oversight of arbitration is strictly limited. . . .
. . . The U.S. Supreme Court in United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987) makes clear that it is not the function of courts to supervise arbitrators. . . .
. . . To permit Kupper Parker to appeal the arbitrator's decision to deny a deposition request would frustrate the purpose of arbitration. Arbitration is designed to be a less expensive, less time-consuming way of settling disputes. . . . If Missouri allowed every alleged misinterpretation of an arbitration agreement by an arbitrator to be litigated and appealed arbitrations would be a mere prelude to litigation and would, in the end, prove more time-consuming and expensive than litigation.51
§ 14.5.1—Enforcement By The Arbitrator
To what extent does an arbitrator have power to enforce his or her orders by the imposition of sanctions? The U.S. District Court for the Southern District of New York upheld the arbitrator's power to award attorney fees against the party engaged in activities to evade document production.52
Generally, an arbitrator can enforce his or her orders by assessing arbitration fees and costs against the offender, as well as other monetary penalties. However, the courts have gone so far as to uphold arbitrator-imposed sanction of dismissal of the claimant's claims.53
An arbitrator generally has the same scope of powers to enforce his or her orders and sanctions as does a trial judge,54 except for contempt powers and the powers of engaging the sheriff or marshal. If the latter powers are needed, judicial enforcement powers must be involved.
Examples of the arbitrator's powers include assessment of costs and expenses, remedies such as contained in C.R.C.P. 37, and sanctions for failure to make disclosure or cooperate in discovery.
§ 14.5.2—Review Of Interim/Provisional Orders Of The Arbitrator By The District Court
Notwithstanding a clear provision in the FAA, the courts have generally been willing to review interim/provisional awards by the arbitrator. For example, the courts recognize that under the statutes, "[o]nly awards that are final are subject to judicial review." "Final awards" are interpreted to mean "those that purport to resolve finally the issues submitted to them." Thus, "[disposition of an issue that is severable from other issues still before the arbitrators may be deemed final and subject to confirma-tion."55 The court reviewed an arbitrator's order requiring that both parties escrow proceeds of a letter of credit in a joint account, pending resolution of the further issues to be arbitrated.
Similarly, an order of arbitration requiring members of insurance pools to make payments into an escrow account pending the arbitrators' decision was subject to confirmation and enforcement under 9 U.S.C. § 10.56 The Ninth Circuit noted that judicial review...
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