Chapter 5 - § 5.3 • OPTIONAL TERMS FOR AN ARBITRATION AGREEMENT

• Jurisdiction: Colorado

§ 5.3 • OPTIONAL TERMS FOR AN ARBITRATION AGREEMENT

An arbitration agreement can be quite long, covering topics such as:³⁵

• Number of arbitrators;
• Method of selection of the arbitrator(s);
• Arbitrator qualifications, and qualifications not required, e.g., need not be a lawyer, education, experience, etc.;
• Non-lawyers as arbitrators and as representatives of the parties;
• Manner of notice of an initial application to a court for an order;³⁶
• Location of the arbitration;
• Determination of arbitrable issues;
• Language to be used in the hearing;
• Governing arbitration law;
• Whether the intertwining doctrine applies;
• Conditions precedent to arbitration, including negotiation, mini-trial, mediation, and/or dispute review board;
• Preliminary relief;
• Consolidation of arbitrations;
• Document discovery;
• Depositions;
• Duration of arbitration proceedings;
• Interim awards;
• Remedies;
• Baseball arbitration awards;
• Arbitration limited to defined monetary limits;
• Power of arbitrator to enter sanctions for noncompliance with orders;
• Incorporation/application of ABA/AAA Code of Ethics;
• Default procedures for non-payment of fees;
• Assessment of attorney fees and costs;
• Form of opinion accompanying the award;
• Confidentiality;
• Scope of appeals (non-appealability of arbitrator's award);
• Judicial reference;
• Statutes of limitation;
• No appeal of district court judgment;
• Whether class actions can be maintained;
• Applicability of emergency procedure rules (if an AAA arbitration); and
• Forum.

Not all of these provisions are valid in all circumstances. Usually, most of these provisions are not needed.

As discussed in Chapter 17, both Colorado and many of the federal courts have eliminated manifest disregard of the law as a common law ground for vacating an arbitration award. Historically, and perhaps substantially today, arbitrators were generally not required to follow the law. See § 16.4.

However, it is increasingly common for the parties to desire the arbitrator to apply and decide the dispute "in accordance with the law." Indeed, they want the award, insofar as interpretation and application of applicable law, to be subject to at least limited judicial review.

Hence, the parties may provide:

The arbitrator shall apply the substantive law of the State of Colorado and decide all issues in accordance therewith. The arbitrator shall not have jurisdiction or authority to render an award not in accord with the law of the State of

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