Chapter 4 - § 4.8 • APPLICABILITY OF GENERAL LITIGATION RULES AND STATUTES TO ARBITRATION

• Jurisdiction: Colorado

§ 4.8 • APPLICABILITY OF GENERAL LITIGATION RULES AND STATUTES TO ARBITRATION

The extent to which arbitrators are "governed" by substantive law is discussed in §§ 3.13 and 16.4.

The statute books are filled with provisions applicable to the conduct of litigation. The Colorado and federal rules of civil procedure define in detail the procedures governing civil actions. To what degree are these statutes and rules applicable to arbitration?

§ 4.8.1—Applicability Of Colorado Statutes Governing Civil Actions

There are numerous provisions in the Colorado Revised Statutes that govern various aspects of civil actions. Examples of these statutes include:

• C.R.S. § 13-16-101. Security for costs.
• C.R.S. § 13-16-107. Costs on motion to dismiss.
• C.R.S. § 13-16-111. Recovery of costs of suit.
• C.R.S. § 13-16-113. Costs upon dismissal or summary judgment.
• C.R.S. §§ 13-17-101, et seq. Attorney fees for frivolous, groundless, or vexatious actions.
• C.R.S. § 13-17-202. Award of actual costs and fees when offer of settlement was made.
• C.R.S. § 13-20-602. Certificate of review (actions against licensed professionals).
• C.R.S. § 13-21-111. Negligence cases — comparative negligence as measure of damages.
• C.R.S. § 13-21-111.5. Civil liability cases — pro rata liability of defendants — shifting financial responsibility for negligence in construction agreements.
• C.R.S. §§ 13-50.5-101, et seq. Uniform Contribution Among Tortfeasors Act.
• C.R.S. §§ 13-80-101, et seq. Limitation of Actions.

For example, C.R.S. § 13-17-202, Award of Actual Costs and Fees When Offer of Settlement Was Made, in general, provides that when a plaintiff or defendant serves an offer of settlement upon the opposing party that is rejected by the opposing party, if the opposing party ultimately obtains a less favorable result then it would have had, had it accepted the offer of settlement, the offering party may recover the actual costs accruing after the offer of settlement. The statute sets forth the details of its operation.

"Assume" that this statute is procedural and not substantive. The statute does not refer to arbitration, nor is there any other statute known to this author that expressly makes the statute applicable to arbitration. Similarly, there is no Colorado reported judicial decision known to the author holding that the statute applies to any arbitration. The statute is contained in Part 2 of Article 17 of Title 13 of the Colorado Revised Statutes, "Attorney Fees in Civil Actions in General." The statute refers throughout to a "civil action," service "before the commencement of trial," etc. The statute defines its applicability to "any civil action of any nature commenced or appealed in any court of record in this state."¹³² Arbitration is not within this definition of applicability as the words are commonly used, nor is there any suggestion in the...