In a groundbreaking step, the American Arbitration Association (“AAA”) and the International Centre for Dispute Resolution have newly enacted the Optional Appellate Arbitration Rules (“Appellate Rules”) which allows for a specific and streamlined procedure for parties to obtain further review of arbitral awards. Effective November 1, 2013, these rules put a serious dent in the rigidity that once was the finality of arbitration awards.
Arbitration has traditionally been the gold star standard in the conservation of judicial resources, representing a process intended to be both efficient and final, in that an arbitration award would only be set aside under extreme circumstances. Both the Federal Arbitration Act and the New Jersey Arbitration Act provide that an arbitration award will only be vacated upon a showing of corruption, fraud, partiality or misconduct, or by showing that an arbitrator exceeded his powers. See, 9 U.S.C. § 10, N.J.S.A. 2A:23B-23.
By allowing for a much broader review of arbitration awards by a AAA appellate panel, the Appellate Rules offer a refreshing alternative to the narrow grounds dictated by both the federal and state statutes, but also complicate the overall goal of efficiency and finality. The Appellate Rules are optional, only invoked upon agreement by the parties. Unlike the strict grounds dictated by the state and federal statutes, appellate arbitrators are authorized to review both questions of law and issues of fact, as a party may appeal on the grounds that the arbitral award is based upon an error of law that is material and prejudicial or determinations of fact that are clearly erroneous. See, Appellate Rules, A-10. These new bases for appeal give litigants additional options to consider when entering into a AAA agreement.
The AAA appellate process is truncated, and can be completed in about three months’ time. Oral argument is permitted only if the Appeal Tribunal deems it necessary, and generally appeals will be determined upon the written documents submitted. Id. at A-15. The parties are mandated to cooperate in compiling the record on appeal and may submit as part of the record the relevant excerpts of the transcript of the hearing, any evidence relevant to the appeal that was previously presented at the arbitration hearing and pre- and post-hearing briefs. The Appeal Tribunal’s written decision is due within thirty days of the last appeal brief. The Tribunal has the authority to adopt the underlying award as its own or substitute its own judgment for the underlying award, but is precluded from ordering a new arbitration hearing or remanding the case back to the original arbitrator(s) for corrections or further review. Id. at A-19(a).
It is AAA’s intention that parties engaged in large, complex cases will make use of the Appellate Rules, as evidenced by the type of record required to be maintained for any appeal, and the costs associated with invoking the Appellate Rules. Pursuant to the Administrative Fee Schedule, there is a non-refundable $6,000.00 fee to be paid by the party seeking appellate arbitration and an additional $6,000.00 administrative fee to be borne by any party filing a cross-appeal. These fees do not include the fees and costs associated with the Appeal Tribunal. Such a requirement has the intended outcome of limiting the adoption of the Appellate Rules to large, complex matters, as well as dissuading frivolous appeals.
The ultimate take-away from the introduction of the Appellate Rules is that review of arbitral awards is now much more flexible, as parties may opt into the Appellate Rules and seek an appeal on the grounds that the underlying award is based upon an error of law or fact. Yet these benefits do not come without costs, and the Appellate Rules are obviously tailored for larger, complex cases. With time, we will be sure to see how these newly enacted Appellate Rules will play out and what their effect will be on the arbitration process.