Chapter 4 - § 4.9 • WHEN SHOULD THE LAW APPLIED IN ARBITRATION AND IN JUDICIAL PROCEEDINGS BE THE SAME?

• Jurisdiction: Colorado

§ 4.9 • WHEN SHOULD THE LAW APPLIED IN ARBITRATION AND IN JUDICIAL PROCEEDINGS BE THE SAME?

and subject to certain discretionary powers of the arbitrator, an arbitrator should apply the same substantive law as would a court hearing the same issue. So to, very generally, as to procedural issues. Generally, arbitration is intended to provide a different forum and procedure, but not necessarily a different result.

Choice of Law

If the parties' agreement has a choice-of-law provision, generally, a court and an arbitrator should follow that choice in the same circumstances. Similarly, if the contract is silent, normally an arbitrator should follow the same choice-of-law rules as would a court.

Waiver of Class Actions

The issue of contractual waiver of class actions frequently arises in arbitration, particularly in consumer disputes. The validity of the waiver should be determined under the rules defined by the applicable case law and statutes,¹³⁹ regardless of whether determined by a judge or arbitrator. Arbitration should not be a device to avoid substantive law. See § 6.8.

Validity of a Contract

Generally, the validity of contracts is governed by state law. Hence, the result of a case should not be different when heard by a judge or an arbitrator — at least, no different than if heard by two different judges. The law should be the same when...