Complex commercial cases.

• Author: Longino, John
• Position: Letters - Letter to the editor

An excellent article ("Re-examining the Presumption in Favor of Arbitration in Complex Commercial Cases") was in the March issue. But in the April 2007 issue, I wrote a letter which disagrees with the third sentence of the March article that "courts indulge every reasonable presumption in favor of the arbitrability of a dispute." There is a footnote at the end of the quoted sentence. The footnote begins, "Any doubt about the scope of the arbitration clause should be resolved in favor of arbitration" (emphasis added). The point of my April 2007 letter (and the primary error in the March 2010 article) lies in the difference between "does" and "should": It is clear that arbitration should be favored by the courts. The fact is that--in most courts--it DOES not receive that favor. John Longino, Waleska, GA

To the extent the well-written article "Re-examining the Presumption in Favor of Arbitration in Complex Commercial Cases" might give the impression that arbitration is less efficient than litigation, I respectfully disagree. The primary concern seems to be that some parties will institute litigation to avoid arbitration. For many arbitrable disputes, there is no credible argument to do this. Courts should dispose of such claims quickly, with sanctions against parties bringing them frivolously. As to post-award litigation, grounds for attacks on arbitration awards are quite narrow. Indeed, the cases cited in the article show that parties bringing postaward attacks risk sanctions under Rule 11 (and presumably under F. S. [section]57.105).

Parties in arbitration pay for the forum, including the arbitrators. Litigants have their dispute resolution subsidized by the taxpayers, with parties only paying a very small portion of forum costs. This does not make litigation more efficient, it just allows litigants to impose on the rest of us some of the costs of their inability or unwillingness to work out their dispute voluntarily.

Parties may reduce costs of arbitration by agreeing to such things as a single arbitrator rather than three-arbitrator panel, proceeding on the papers without a hearing, routinely conducting hearings via telephone, allowing witnesses to appear by telephone or video link, etc. Final hearings in arbitrations are scheduled for a certain date--there is none of...