Rules and Reliability: How Arbitrators Decide Cases

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Tony Cole




Kluwer Law International




A former President of the American Arbitration Association (AAA) once mused that most studies of arbitration were devoted to discussion about applicable law or procedural rules. He then suggested that it was “far more important to try to analyze how and why arbitrators make up their minds.”

This distinction bears a nice rhetorical ring. On the one hand, rules and laws. On the other hand, the real world of “how and why” arbitrators decide, a theme whose sex appeal derives in large measure from its clear focus on one of humankind’s favorite topics: ourselves.

On reflection, however, the juxtaposition of rules and reality melts into insignificance for most business arbitration. On at least three levels, rules affect how arbitrators decide cases: (i) the law applicable to the merits of a dispute, such as whether New York allows liability insurers to withhold reimbursement for a reasonable settlements; (ii) the grounds for award annulment and recognition applied by reviewing courts; and (iii) the so-called procedural soft law of arbitration found in guidelines elaborated by professional associations and arbitral institutions, affecting matters like witness examination, conflicts of interest and document production. The last of these, the procedural soft law of arbitration, provides a starting point in exploring how arbitrators make up their minds.


Boston University School of Law, Public Law Research Paper No. 17-38

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