Chapter 3 - § 3.12 • APPLICABILITY TO ARBITRATION OF PROCEDURAL-TYPE STATUTES AND RULES GOVERNING COURT PROCEEDINGS

• Jurisdiction: Colorado

§ 3.12 • APPLICABILITY TO ARBITRATION OF PROCEDURAL-TYPE STATUTES AND RULES GOVERNING COURT PROCEEDINGS

It is unclear whether the many statutes and rules that apply to litigation also apply to arbitration. The statutory power under the Colorado Common Ownership Act to engage in "litigation" includes arbitration, thus "recognizing arbitration as a form of litigation. . . ."⁶⁴

In some instances, the agreement between the parties may define that certain litigation rules and statutes do apply. Generally, the agreement will govern, although generally agreements cannot "apply" to non-parties. Usually, if the agreement does not specify the applicability of litigation rules and procedures, it is up to the arbitrator to determine the applicability. A clause such as "this arbitration shall be governed by the laws of the State of Colorado" does not mean all rules and statutes of Colorado are applicable.

Examples of litigation rules and statutes that may apply to arbitration include:

• Rules of Civil Procedure, see § 3.7.1;
• Pro rata liability, comparative negligence, and contribution (C.R.S. §§ 13-21-111, 13-21-111.5, and 13-50.5-101);
• Prejudgment (pre-award) interest (C.R.S. §§ 5-12-102 and -103);
• Privilege statutes (C.R.S. Title 13, Article 90);
• Statutory offer of settlement (C.R.S. § 13-17-202);
• Frivolous and groundless claims (C.R.S. § 13-17-101);
• Certificate of review (C.R.S. § 13-20-602);
• Cost bond (C.R.S. § 13-16-101);
• Construction defects (C.R.S. §§ 13-20-803, et seq., list of defects and notice of claims);
• Evidence (C.R.S. Title 13, Articles 25 and 26) and Colorado Rules of Evidence (C.R.C.P. Chapter 33);
• Statutes of limitations (C.R.S. Title 13, Articles 80 through 82); and
• Protection of obligors (C.R.S. § 5-3.5-102).

See also C.R.C.P. 81 and § 3.7.1.

If the agreement is silent, is it "error" for the arbitrator to fail to follow or apply statutes such as those listed above? That is an open question.

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