Chapter 3 - § 3.3 • THE AGREEMENT OF THE PARTIES TO ARBITRATE

• Jurisdiction: Colorado

§ 3.3 • THE AGREEMENT OF THE PARTIES TO ARBITRATE

Subject to limitations imposed by law (discussed in Chapter 5, "Agreements to Arbitrate"), the parties' agreement governs the arbitration process, at least to the extent that the parties do not choose to remain silent and have the procedures defined by the statutory default procedures and the arbitrator's inherent powers. These points are discussed more fully below. However, it should be remembered that the agreement of the parties can be and often is the most important definition of the arbitration process.

§ 3.3.1—Incorporation Of Rules Of Arbitration Into The Agreement To Arbitrate

Often, agreements to arbitrate incorporate rules pursuant to which the arbitration will be conducted. For example, the parties may agree that the arbitration will be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA). There are many other "promulgated" arbitration rules, and sometimes parties prepare their own. When incorporated, such rules are as much a part of the arbitration agreement as if spelled out word for word.⁴

Incorporation of AAA rules into the arbitration agreement includes designating the AAA to administer the arbitration, particularly when those rules so provide.⁵ Most organizations, such as the AAA, periodically revise their arbitration procedure rules. Hence, an issue may come up as to which version of the rules applies once a dispute arises.

When the arbitration provision calls for arbitration under an organization's rules, the reference is to the rules in effect at the time of the demand, not at the time of contracting.⁶ The AAA rules specifically so provide. In Taubman Cherry Creek Shopping Center, LLC v. Neiman-Marcus Group, Inc.,⁷ current AAA rules had provisions providing that "[t]hese Rules and any amendment thereof shall apply in the form obtaining at the time the arbitration is initiated." In that case, the Colorado Court of Appeals appears to have joined those courts holding that incorporating the possibility of a future rule by reference is not valid.

However, when the FAA is applicable and the arbitration agreement incorporates AAA rules, and under those rules the arbitrator and not the courts determine the validity and scope of the arbitration agreement, apparently those rules will be enforced.⁸

However, if the agreement provides that the arbitration will be governed by the rules of a particular arbitration organization, but does not say that the arbitration shall be administered by that organization, that organization may not be the required administrator.⁹

See also §§ 4.5.3-4.5.4, 8.4.3.

Often, the arbitration clause will provide, e.g., that the arbitration shall be administered in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The AAA, as well as other arbitration organizations, provides in its rules that if the parties agree its rules apply, they "shall apply in the form in effect at the time the administrative requirements are met for a Demand for Arbitration or Submission Agreement received by the AAA."¹⁰ However, the rule also...