College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - Fourth Edition
**Access the latest CLE webinar titled, “The College of Commercial Arbitrators Presents: Hear Ye, Hear Ye - Thoughts for Conducting an Effective and Successful Hearing - PART 2”, which was held live on Zoom on Wednesday, September 27th, 2023. This program was the Fifth installment of an ongoing CCA series hosted by JURIS Conferences. The discussion addressed the following questions:
Fact witness testimony –
-Pros and cons of using written direct witness testimony.
-Use of depositions in lieu of live testimony.
-Managing remote witness testimony.
-Simultaneous fact witness testimony.
Cross examination –
-What do arbitrators find effective?
Expert witness –
-Simultaneous expert testimony or "hot tubbing".
-What makes an effective and persuasive expert?
Management of hearing time –
-Chess clock, anyone?
Technology –
-Remote and hybrid hearings.
Closing briefs and closing argument –
-Timing – Immediately after the last witness or later?
-Content – What do arbitrators want in a closing submission?
Panelists:
Stephanie Cohen is an independent arbitrator of international and domestic disputes based in New York City. Internationally recognized as a leading arbitrator by Chambers Guides and as a Who’s Who Thought Leader, Stephanie is also entrusted by major arbitral institutions to conduct new arbitrator training, including for the AAA since 2019 and for the ICC as Co-Chair of its Advanced Arbitration Academy for North America. She is especially well-known for her work on the impact of technology on arbitration practice and procedure, including as Chair of the Working Group that drafted the ICC Commission Report on Leveraging Technology for Fair, Effective, and Efficient International Arbitrations and as a member of the award-winning ICCA-NYC Bar-CPR Working Group on Cybersecurity. Stephanie has practiced exclusively as an arbitrator since 2012 and is highly experienced with complex commercial disputes arising under a wide range of industries, legal systems, and arbitration rules.
Michael H. Diamant has been an arbitrator and mediator for forty years hearing and resolving complex technology disputes and serving on the panels of the American Arbitration Association, the International Centre for Dispute Resolution, and the International Institute for Conflict Prevention & Resolution. He is a Fellow of the College of Commercial Arbitrators, a Fellow of the Chartered Institute of Arbitrators, and a member of the Tech List and the Executive Committee of the Silicon Valley Arbitration and Mediation Center. He retired at the end of 2016 as partner and remains Of Counsel at Taft Stettinius & Hollister LLP in its Cleveland Ohio office. He has litigated and arbitrated around the country including the U.S. Supreme Court and tried numerous jury and non-jury cases involving complex engineering, IP, and business disputes.
Nancy F. Lesser is the principal of Pax ADR LLC in Washington DC, and brings over 25 years of experience as a neutral to her dispute resolution practice. Ms. Lesser serves as a panelist on the Large Complex Commercial Disputes Panel of the American Arbitration Association; the Panel of Neutrals for the American Health Lawyers Association; and the Panel of Distinguished Neutrals for the Commercial, Banking, Accounting, Financial Services, and Real Estate Panels of the CPR Institute for Dispute Resolution. She is a Fellow of the College of Commercial Arbitrators. She serves as Chair of the Amtrak National Arbitration Panel, which hears disputes between Amtrak and the freight railroads nation wide.
Gary McGowan became a full-time neutral three decades ago, after serving as a founding partner and business litigator at a Houston law firm. He has since arbitrated over 200 matters, including 44 international disputes. He is a Fellow in the Chartered Institute of Arbitrators, the College of Commercial Arbitrators, and the Construction Lawyers Society of America. The following arbitral institutions list him as a panelist: ICDR (international), AAA (commercial, large case, and oil/gas), CPR (national and oil/gas), American Health Lawyers Association, Korean Commercial Arbitration Board, British Columbia International Commercial Arbitration Centre, Hong Kong International Arbitration Centre, and Australian Centre for International Arbitration. Also, he appears on the Energy Arbitrators List, an international panel of energy industry arbitrators sponsored by ICDR.
Moderator: Barbara A. Reeves is an arbitrator, mediator, and special master with JAMS in Los Angeles, California. She has more than 17 years’ experience arbitrating and mediating the range of commercial business disputes including intellectual property, antitrust, employment, construction, insurance coverage, and entertainment. A graduate of Harvard Law School, she clerked for the Ninth Circuit, was a trial attorney and section chief with the Department of Justice, Antitrust Division, a partner in major law firms (Morrison & Foerster, Fried Frank, Paul Hastings) and associate general counsel at a major electric utility holding company.
Recording Link: https://us06web.zoom.us/rec/share/rCJ448KqKWEISh_ez9Up5XV_QLnOOpfeWrk9bIOvW6kfw8p08Lkdax1Vc_E0hA69.dO76meJuuvvyMhHt
The Guide is the Most Authoritative and Up-to-Date Practical Guide for Arbitrators and Advocates
The revised, updated, and expanded fourth edition of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration provides practical guidance on conducting U.S-based commercial arbitrations and international arbitrations throughout the world. More than 70 prominent arbitrators share their expertise. It takes into account new and revised institutional rules, case law, and legislation affecting commercial arbitration, and expands the discussion of the issues arbitrators confront on a daily basis.
The past four years have witnessed dramatic developments in the field of commercial arbitration. Arbitration law continues to evolve at a rapid pace, and ever-increasing numbers of experienced lawyers and other professionals aspire to become arbitrators and to serve in that capacity in the many high-profile arbitrations that have become routine. Contemporaneously, various professional organizations have strived to develop standards, protocols, and guidance to be considered both by professional arbitrators and by parties and advocates involved in arbitration proceedings. Moreover, the increased use of commercial arbitration in international commercial transactions, and the fact that many experienced international arbitrators now reside or practice in the United States, has ensured that the United States will serve as a viable situs for the conduct of such international arbitrations in the years to come.
Given these developments, further revisions to the Best Practices Guide were once again warranted and are based on the best guidance available from the nation’s leading organization of commercial arbitrators. This fourth edition also for the first time provides in-depth analyses of a variety of additional topics, including the use of third-party summons, issues unique to construction arbitration, and emergency arbitrators. The fourth edition also contains two new appendices respectively relating to the use of social media by arbitrators and security of arbitrators’ ESI.
The Fourth Edition features:
• A groundbreaking analysis of arbitrability issues and how arbitrators should address them
• Enhanced discussion of how to address a party’s failure to pay for arbitrator and institutional fees and expenses
• A new chapter on the complex legal and practical issues of summoning nonparty witnesses
• Discussion of the latest eDiscovery developments in commercial arbitrations
• Checklists and updated guidance on the conduct of preliminary conferences and hearings on the merits
• Exposition of the legal requirements of reasoned awards
• A new chapter on emergency arbitrators and emergency arbitral proceedings
• A new chapter on unique issues in construction arbitration
• An expanded discussion of international arbitration, with six current charts addressing the rules of the leading international arbitral institutions in North America, Europe, Asia, and the Middle East
The Fourth Edition of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration continues to be an indispensable for all who work in commercial arbitration.
Winslow Christian, James M. Gaitis, A. Holt Gwyn, Carl F. Ingwalson, Jr., Laura A. Kaster, June R. Lehrman, John J. McCauley, Vivien B. Shelanski, Curtis E. von Kann, and Robert W. Wachsmuth
Chapter 2 - APPOINTMENT, DISCLOSURES, AND DISQUALIFICATION OF NEUTRAL ARBITRATORS
James H. Carter, Richard Chernick, Peter D. Collisson, Paul J. Dubow, Ruth V. Glick, Robert A. Holtzman, June R. Lehrman, James R. Madison, John J. McCauley, Bruce E. Meyerson, and Michael S. Oberman
Chapter 3 - NONNEUTRAL ARBITRATORS
Richard Chernick, James M. Gaitis, and Robert A. Holtzman
Chapter 4 - ARBITRATOR FEES AND EXPENSES
John T. Blankenship, Louis Coffey, Philip E. Cutler, Neal M. Eiseman, A. Holt Gwyn, Laura A. Kaster, Allison J. Snyder, and Curtis E. von Kann
Chapter 5 - DETERMINING JURISDICTION AND ARBITRABILITY
William G. Bassler, R. Doak Bishop, Robert B. Davidson, Richard Chernick, James M. Gaitis, Barry H. Garfinkel, Carl F. Ingwalson, Jr., Alan M. Kanter, June R. Lehrman, James R. Madison, and John J. McCauley
Chapter 6 - PREHEARING CONFERENCES AND PREHEARING MANAGEMENT IN GENERAL
David N. Brainin, William B. Fitzgerald, James P. Groton, Carl F. Ingwalson, Jr., Laura A. Kaster, John J. McCauley, Gerald F. Phillips, Deborah Rothman, Vivien B. Shelanski, Allison J. Snyder, Curtis E. von Kann, and John H. Wilkinson
Gary L. Benton, Joseph F. Canterbury, Jr., Deborah A. Coleman, Louise E. Dembeck, Eugene I. Farber, A. Holt Gwyn, Carroll E. Neesemann, Robert W. Wachsmuth, and Dana Welsh
John M. Barkett, R. Doak Bishop, M. Scott Donahey, James W. Durham, James M. Gaitis, George Gluck, Marc J. Goldstein, David M. Heilbron, John A. Holsinger, Louise A. LaMothe, John J. McCauley, Kathleen A. Roberts, Deborah Rothman, John M. Seitman, Stanley P. Sklar, R. Wayne Thorpe, and Robert P. Wax
Chapter 9 - SUMMONING NONPARTY WITNESSES
John M. Barkett, George Gluck, Marc J. Goldstein, John A. Holsinger, and John J. McCauley
A. J. Krouse, Louise A. LaMothe, Nancy F. Lesser, Susan H. Nycum, Barbara A. Reeves, Deborah Rothman, Irene C. Warshauer, and John H. Wilkinson
Chapter 11 - THE HEARING ON THE MERITS
Henri C. Alvarez, William L. D. Barrett, Louis A. Craco, William B. Fitzgerald, James P. Groton, A. Holt Gwyn, John J. McCauley, John A. Sherrill, Allison J. Snyder, and Curtis E. von Kann
Chapter 12 - AWARDS AND SUBSTANTIVE INTERLOCUTORY ARBITRAL DECISIONS
John A. Barrett, Thomas J. Brewer, Jay W. Elston, James M. Gaitis, Richard A. Levie, John Burritt McArthur, Michael S. Oberman, and Michael S. Wilk
Chapter 13 - POSTAWARD MATTERS
John K. Boyce, III, Paul J. Dubow, James M. Gaitis, Larry R. Leiby, James R. Madison, Lawrence R. Mills, Stephen S. Strick, Christi L. Underwood, and David E. Wagoner
Chapter 14 - EMERGENCY ARBITRATORS
James M. Gaitis and Michael S. Wilk
Chapter 15 - INTRATRIBUNAL RELATIONS
John T. Blankenship, Louis Coffey, Philip E. Cutler, A. Holt Gwyn, and Curtis E. von Kann
Chapter 16 - CLASS ARBITRATION
William L. D. Barrett, Robert B. Davidson, Eugene I. Farber, James M. Gaitis, Louise A. LaMothe, James R. Madison, Bruce E. Meyerson, Deborah Rothman, Francis O. Spalding, and John H. Wilkinson
Chapter 17 - UNIQUE ISSUES IN CONSTRUCTION ARBITRATION
Albert Bates, Jr., John E. Bulman, Patricia D. Galloway, Neal M. Eiseman, Herbert H. (Hal) Gray, III, A. Holt Gwyn, John W. Hinchey, Allen Overcash, and Stanley P. Sklar
Chapter 18 - INTERNATIONAL ARBITRATION (Preliminary Matters)
Gerald Aksen, Axel Baum, Robert B. Davidson, James M. Gaitis, Sally Harpole, Richard H. Kreindler, Urs M. Laeuchli, Lawrence W. Newman, Philip D. O’Neill, Elliot E. Polebaum, and Lucy F. Reed
Chapter 19 - INTERNATIONAL ARBITRATION (Conduct of Proceedings)
Gerald Aksen, Axel Baum, Robert B. Davidson, James M. Gaitis, Sally Harpole, Richard H. Kreindler, Urs M. Laeuchli, Lawrence W. Newman, Philip D. O’Neill, Elliot E. Polebaum, and Lucy F. Reed
Chapter 20 - HYBRID ARBITRATION PROCESSES
Trey Bergman, Thomas J. Brewer, William H. Levit, Jr., Richard R. Mainland, Gerald F. Phillips, and Edna R. Sussman
Appendix I - GUIDANCE NOTE: ARBITRATION AND SOCIAL MEDIA
Thomas D. Halket, Chair, Stephen P. Gilbert, Herbert H. (Hal) Gray, III, Larry D. Harris, Robert A. Holtzman, William H. Lemons, Peter L. Michaelson, Edna Sussman, Irene C. Warshauer, and John H. Wilkinson
Appendix II - GUIDANCE NOTE: SECURITY OF AN ARBITRATOR’S ELECTRONIC INFORMATION
Gerald G. Saltarelli, William H. Levit, Jr., and Mitchell L. Marinello
Index
Editor in Chief
James M. Gaitis, uniquely honored with the title of Distinguished Fellow of the College of Commercial Arbitrators for his outstanding contributions to the field of commercial arbitration, is also a long-standing member of the Texas and Montana state bars, and a former longtime member of the Oklahoma state bar. Since 1990 he has specialized in serving as an arbitrator in complex commercial and oil & gas/energy arbitrations. Mr. Gaitis is the former Director (and Principal Research and Teaching Fellow) of the International Dispute Resolution Programme at the Centre for Energy, Petroleum & Mineral Law and Policy (CEPMLP), University of Dundee, Scotland, where he designed and taught classes on international dispute resolution and advocacy in international oil & gas arbitration to LLM students and professionals. In private practice, he served variously as lead trial counsel, in-house counsel, and special counsel for a diverse array of companies, individuals, and other entities involved in the domestic and international oil & gas industries. He is listed on a broad variety of international and domestic arbitration panels, including the AAA National Energy Panel, Construction Panel, Merger & Acquisitions Panels, and Large, Complex Case Panel; the ICDR’s Panel of Arbitrators and the ICDR’s prestigious Energy Arbitrators List; the British Columbia International Commercial Arbitration Centre; and the CPR’s Oil & Gas/Energy Panel and Cross-Border Panel. He frequently serves as a chair, party-appointed arbitrator, emergency arbitrator, and list-appointed arbitrator in cases involving all aspects of the oil & gas industry, as well as in commercial cases relating to such matters as manufacturing, construction lending, engineering, asset sales, business torts, and real property. Many of his arbitrations, which have included claims in excess of $1 billion, have involved Fortune 100 and Oil & Gas Journal Top 50 companies, as well as national oil companies and international oil companies.
Editors
A. Holt Gwyn is recognized in the United States and Latin America for his arbitration and mediation practice. His ADR practice complements his legal practice, which is concentrated in construction, environmental, and business contracts and disputes. Mr. Gwyn has coauthored several books and is the author of more than two dozen articles on construction and environmental topics and on resolution of disputes by arbitration and mediation. Mr. Gwyn has served as Chair of the world’s largest organization of construction lawyers, the ABA’s Forum on Construction Law. In 2014, he received the Forum’s highest achievement “Cornerstone” award. He is a Fellow and in 2016–2017 served as President of the American College of Construction Lawyers. He is also a Fellow of the College of Commercial Arbitrators and a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators, London, England.
Laura A. Kaster comes to her work as a full-time arbitrator and mediator from a background first as a litigation partner at Jenner & Block and then as Chief Litigation Counsel for AT&T, where she also represented AT&T Labs and was responsible for all of AT&T’s arbitrations (including complex insurance matters), IP litigation, and all appeals in complex litigation and employment matters. Her work as a neutral is modeled on her admiration of the work of Judge Frank M. Coffin of the First Circuit Court of Appeals for whom she clerked following law school. From 2015 to 2017, she was the President of the Justice Marie L. Garibaldi ADR Inn of Court, the first ADR Inn in the country. She is also a past Chair of the NJSBA Dispute Resolution Section and a Co-Editor in Chief of the NYSBA’s journal, Dispute Resolution Lawyer. She is the 2014 recipient of the NJSBA’s Boskey Award for the ADR practitioner of the year. She has served as an arbitrator, including as chair, in complex commercial, telecom, biotech, patent and trademark licensing, partnership and development and family business disputes, and in matters involving the sales of businesses and securities claims. Ms. Kaster has served as a mediator in more than 200 matters, including matters involving hundreds of millions of dollars and long-running disputes.
John (Jay) McCauley is an arbitrator, mediator, and arbitration consultant. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and of the College of Commercial Arbitrators. He is an honors graduate of Harvard Law School and a former partner of a large, international law firm, where he litigated a broad range of matters, including security fraud class actions, corporate governance, insurance and reinsurance coverage, real property, construction, business torts, intellectual property, healthcare, and employment. Mr. McCauley has been continuously listed for the past nine years as a California Super Lawyer, and for the past eight years, he has been included in Best Lawyers in America in the field of ADR. He has been a commercial arbitrator on the national roster of the AAA since 1998, where he serves on the Large, Complex Case; Commercial; Real Property and Construction; Employment; Healthcare; and Class Action Panels, as well as on the roster of the ICDR. He is also on the roster of neutrals for Judicate West and on the “senior arbitrators” panel for USA&M. In the past decade, he has been appointed to serve as an arbitrator on more than 180 significant matters, including multiple major matters ranging in value from $10 million to more than $100 million.
Contributors
All contributors are or have been Fellows of the College of Commercial Arbitrators and have substantial experience as arbitrators.
Gerald Aksen, New York, NY
Henry C. Alvarez, Vancouver, Canada
Markham Ball, Washington, DC
John M. Barkett, Miami, Florida
John A. Barrett, Houston, Texas
William L. D. Barrett, New York, NY
William G. Bassler, New York, NY
Albert Bates, Jr., Pittsburgh, Pennsylvania
Axel Baum, Paris, France
Bruce W. Belding, Sausalito, California
Gary L. Benton, Palo Alto, California
Trey Bergmann, Houston, TX
R. Doak Bishop, Houston, TX
John T. Blankenship, Franklin/Sparta, Tennessee
John P. Bowman, Houston, Texas
Thomas J. Brewer, Seattle, Washington
John E. Bulman, Providence, RI
Joseph F. Canterbury, Dallas, Texas
James H. Carter, New York, New York
Richard Chernick, Los Angeles, California
Louis Coffey, Philadelphia, Pennsylvania
Deborah A. Coleman, Cleveland, Ohio
Peter D. Collisson, Orange County, California
Louis A. Craco, Manhasset, New York
Philip E. Cutler, Seattle, Washington
Robert B. Davidson, New York, New York
Louise E. Dembeck, New York, New York
M. Scott Donahey, Palo Alto, California
Paul J. Dubow, San Francisco, California
James W. Durham, Media, Pennsylvania
Neal M. Eiseman, New York, New York
Jay W. Elston, Houston, Texas
Eugene I. Farber, White Plains, New York
William B. Fitzgerald, Los Angeles, California
James M. Gaitis, Whitefish, Montana
Patricia D. Galloway, Seattle, Washington
Walter G. Gans, New York, New York
Barry H. Garfinkel, New York, New York
Eugene S. Ginsberg, Garden City, New York
Ruth V. Glick, Burlingame, California
George Gluck, New York, New York
Mark J. Goldstein, New York, New York
Herbert H. (Hal) Gray, III, Atlanta, Georgia
James P. Groton, Atlanta, Georgia
A. Holt, Gwyn, Greensboro, North Carolina
Sally Harpole, San Francisco, California
David M. Heilbron, San Francisco, California
John W. Hinchey, Washington, DC
John R. Holsinger, Hackensack, New Jersey
L. Tyrone Holt, Denver, Colorado
Robert A. Holtzman, Los Angeles, California
Carl F. Ingwalson, Jr., San Diego, California
John Kagel, Palo Alto, California
Alan M. Kanter, Bloomsfield Hills, Michigan
Laura A. Kaster, Princeton, New Jersey
Richard H. Kreindler, Frankfort, Germany
A. J. Krouse, New Orleans, Louisiana
Urs M. Laeuchli, San Francisco, California
Louise A. LaMothe, Santa Barbara, California
June R. Lehrman, Los Angeles, California
Larry R. Leiby, Ft. Lauderdale, Florida
Nancy F. Lesser, Washington, DC
Richard A. Levie, Washington, DC
William H. Levit, Jr., Milwaukee, Wisconsin
James R. Madison, Menlo Park, California
Richard R. Mainland, Los Angeles, California
John Burritt McCarthur, Berkeley, CA/Houston, TX
John J. McCauley
Bruce E. Meyerson, Phoenix, Arizona
Lawrence R. Mills, Seattle, Washington
Lawrence W. Newman, New York, New York
Susan H. Nycum, Portola Valley, California
Michael S. Oberman, New York, New York
Philip D. O’Neill, Boston, Massachusetts
Allen Overcash, Lincoln, Nebraska
Elliot E. Polebaum, Washington, DC
Lucy F. Reed, New York, New York
Thomas D. Reese, Palo Alto, California
Barbara A. Reeves, Los Angeles, California
Kathleen A. Roberts, New York, New York
Deborah Rothman, Los Angeles, California
John M. Seitman, Del Mar, California
Vivien B. Shelanski, New York, New York
John A. Sherrill, Atlanta, Georgia
Stanley P. Sklar, Northbrook, Illinois
Allison J. Snyder, Houston, Texas
Francis O. Spalding, San Francisco, California
Stephen S. Strick, New York, NY/Los Angeles, CA
Edna R. Sussman, New York, New York
R. Wayne Thorpe, Atlanta, Georgia
Christi L. Underwood, Orlando, Florida
Curtis E. von Kann, Washington, DC
Robert P. Wax, West Hartford, Connecticut
Robert W. Wachsmuth, San Antonio, Texas
Irene C. Warshauer, New York, New York
Robert P. Wax, Palm Beach Gardens, Florida
Dana Welsh, San Francisco, California
Michael S. Wilk, Houston, Texas
John H. Wilkinson, New York, NY
“The College of Commercial Arbitrators' ‘Best Practices’ is an invaluable tool for arbitrators seeking to skillfully manage their cases in this increasingly complex and challenging environment. It presents the collective wisdom of the top commercial arbitrators in the United States and sets a clear standard for exceptional performance.”
—Chris Poole, President and CEO, JAMS
“The Guide provides informed and expert commentary on the most critical developments in the field, including new and amended rules and case law, arbitrability, summoning nonparties, emergency arbitrations, and evolving practices in construction arbitration. Combined with an in-depth analysis of the wide range of issues that arise in arbitrations, the result is a highly comprehensive and authoritative source of information on the arbitration process.”
—Eric Tuchmann, Senior Vice President, General Counsel and Corporate Secretary, AAA/ICDR
“With arbitration now facing increasing scrutiny and in some cases, criticism, it is more important than ever to highlight its extraordinary potential to resolve disputes in a more cost-effective, timely and thoughtful manner than traditional litigation has resolved them. The College of Commercial Arbitrators Guide to Best Practices, Fourth Edition, provides all parties to an arbitration with the essential tools they need to elevate every aspect of their arbitrations to the highest level. This Guide is both cutting-edge and comprehensive. Because our organization is always laser-focused on best practices, there will always be a space for it in The CPR Institute’s library.”
—Noah J. Hanft, President & CEO, The International Institute for Conflict Prevention & Resolution (CPR)
"At a time when concerns about costs, delays and results in commercial arbitration continue to dominate current discourse, it is critical for arbitrators and counsel to take the lead in addressing these concerns with realistic practical solutions. The College of Commercial Arbitrators Guide to Best Practices is not only an important contribution to the literature, but a significant step in the direction of responsible stewardship by those active in the field. It should be an essential addition to the practitioner's library."
--Thomas J. Stipanowich, Academic Director, Strauss Institute for Dispute Resolution; Professor of Law, Pepperdine School of Law; Former President and CEO, CPR
"This volume is a treasured resource for every stakeholder in the commercial arbitration process: business parties and their advocates, arbitrators, ADR provider organizations and policy makers. ... This book sparkles with precise, detailed guidance regarding matters large and small. ... A short review cannot do justice to the rich insights that lace this book. This rich volume provides guidance to all players on how to manage and tailor the process without sacrificing its core values of advocate responsibility, procedural efficiency and process fairness."--Dispute Resolution Magazine, ABA Section of Dispute Resolution; Reviewed by Professor Joseph B. Stulberg, Michael E. Moritz Chair in Alternative Dispute Resolution at the Ohio State University Mortiz College of Law
"The best practices set forth in the Guide are aimed at realizing the benefits of commercial arbitration in any given dispute. Therefore the Guide should be consulted by anyone interested in effectively using and improving one's experience with commercial arbitration." -- Stefan B. Kalina, Cox Padmore Skolnik & Shakarchy, LLP; NYSBA New York Dispute Resolution Lawyer
"The College of Commercial Arbitrators once again demonstrates its leadership with this newest edition of their Guide to Best Practices in Commercial Arbitration. For anyone seeking to understand how to improve arbitral practices, this is one book to read. This book is an important contribution to ensuring arbitration lives up to its promise as a fair, efficient, and cost effective solution for commercial disputes"
--Kathy Bryan, former President and CEO, CPR: International Institute for Conflict Prevention & Resolution
"While chiefly addressed to arbitrators, it will also serve advocates well. In addition to other attributes, this book examines contemporary topics which are not typically discussed. Highly readable and very useful."
--William K. Slate II, former President and CEO, American Arbitration Association
Editor in Chief
James M. Gaitis, uniquely honored with the title of Distinguished Fellow of the College of Commercial Arbitrators for his outstanding contributions to the field of commercial arbitration, is also a long-standing member of the Texas and Montana state bars, and a former longtime member of the Oklahoma state bar. Since 1990 he has specialized in serving as an arbitrator in complex commercial and oil & gas/energy arbitrations. Mr. Gaitis is the former Director (and Principal Research and Teaching Fellow) of the International Dispute Resolution Programme at the Centre for Energy, Petroleum & Mineral Law and Policy (CEPMLP), University of Dundee, Scotland, where he designed and taught classes on international dispute resolution and advocacy in international oil & gas arbitration to LLM students and professionals. In private practice, he served variously as lead trial counsel, in-house counsel, and special counsel for a diverse array of companies, individuals, and other entities involved in the domestic and international oil & gas industries. He is listed on a broad variety of international and domestic arbitration panels, including the AAA National Energy Panel, Construction Panel, Merger & Acquisitions Panels, and Large, Complex Case Panel; the ICDR’s Panel of Arbitrators and the ICDR’s prestigious Energy Arbitrators List; the British Columbia International Commercial Arbitration Centre; and the CPR’s Oil & Gas/Energy Panel and Cross-Border Panel. He frequently serves as a chair, party-appointed arbitrator, emergency arbitrator, and list-appointed arbitrator in cases involving all aspects of the oil & gas industry, as well as in commercial cases relating to such matters as manufacturing, construction lending, engineering, asset sales, business torts, and real property. Many of his arbitrations, which have included claims in excess of $1 billion, have involved Fortune 100 and Oil & Gas Journal Top 50 companies, as well as national oil companies and international oil companies.
Editors
A. Holt Gwyn is recognized in the United States and Latin America for his arbitration and mediation practice. His ADR practice complements his legal practice, which is concentrated in construction, environmental, and business contracts and disputes. Mr. Gwyn has coauthored several books and is the author of more than two dozen articles on construction and environmental topics and on resolution of disputes by arbitration and mediation. Mr. Gwyn has served as Chair of the world’s largest organization of construction lawyers, the ABA’s Forum on Construction Law. In 2014, he received the Forum’s highest achievement “Cornerstone” award. He is a Fellow and in 2016–2017 served as President of the American College of Construction Lawyers. He is also a Fellow of the College of Commercial Arbitrators and a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators, London, England.
Laura A. Kaster comes to her work as a full-time arbitrator and mediator from a background first as a litigation partner at Jenner & Block and then as Chief Litigation Counsel for AT&T, where she also represented AT&T Labs and was responsible for all of AT&T’s arbitrations (including complex insurance matters), IP litigation, and all appeals in complex litigation and employment matters. Her work as a neutral is modeled on her admiration of the work of Judge Frank M. Coffin of the First Circuit Court of Appeals for whom she clerked following law school. From 2015 to 2017, she was the President of the Justice Marie L. Garibaldi ADR Inn of Court, the first ADR Inn in the country. She is also a past Chair of the NJSBA Dispute Resolution Section and a Co-Editor in Chief of the NYSBA’s journal, Dispute Resolution Lawyer. She is the 2014 recipient of the NJSBA’s Boskey Award for the ADR practitioner of the year. She has served as an arbitrator, including as chair, in complex commercial, telecom, biotech, patent and trademark licensing, partnership and development and family business disputes, and in matters involving the sales of businesses and securities claims. Ms. Kaster has served as a mediator in more than 200 matters, including matters involving hundreds of millions of dollars and long-running disputes.
John (Jay) McCauley is an arbitrator, mediator, and arbitration consultant. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and of the College of Commercial Arbitrators. He is an honors graduate of Harvard Law School and a former partner of a large, international law firm, where he litigated a broad range of matters, including security fraud class actions, corporate governance, insurance and reinsurance coverage, real property, construction, business torts, intellectual property, healthcare, and employment. Mr. McCauley has been continuously listed for the past nine years as a California Super Lawyer, and for the past eight years, he has been included in Best Lawyers in America in the field of ADR. He has been a commercial arbitrator on the national roster of the AAA since 1998, where he serves on the Large, Complex Case; Commercial; Real Property and Construction; Employment; Healthcare; and Class Action Panels, as well as on the roster of the ICDR. He is also on the roster of neutrals for Judicate West and on the “senior arbitrators” panel for USA&M. In the past decade, he has been appointed to serve as an arbitrator on more than 180 significant matters, including multiple major matters ranging in value from $10 million to more than $100 million.
Contributors
All contributors are or have been Fellows of the College of Commercial Arbitrators and have substantial experience as arbitrators.
Gerald Aksen, New York, NY
Henry C. Alvarez, Vancouver, Canada
Markham Ball, Washington, DC
John M. Barkett, Miami, Florida
John A. Barrett, Houston, Texas
William L. D. Barrett, New York, NY
William G. Bassler, New York, NY
Albert Bates, Jr., Pittsburgh, Pennsylvania
Axel Baum, Paris, France
Bruce W. Belding, Sausalito, California
Gary L. Benton, Palo Alto, California
Trey Bergmann, Houston, TX
R. Doak Bishop, Houston, TX
John T. Blankenship, Franklin/Sparta, Tennessee
John P. Bowman, Houston, Texas
Thomas J. Brewer, Seattle, Washington
John E. Bulman, Providence, RI
Joseph F. Canterbury, Dallas, Texas
James H. Carter, New York, New York
Richard Chernick, Los Angeles, California
Louis Coffey, Philadelphia, Pennsylvania
Deborah A. Coleman, Cleveland, Ohio
Peter D. Collisson, Orange County, California
Louis A. Craco, Manhasset, New York
Philip E. Cutler, Seattle, Washington
Robert B. Davidson, New York, New York
Louise E. Dembeck, New York, New York
M. Scott Donahey, Palo Alto, California
Paul J. Dubow, San Francisco, California
James W. Durham, Media, Pennsylvania
Neal M. Eiseman, New York, New York
Jay W. Elston, Houston, Texas
Eugene I. Farber, White Plains, New York
William B. Fitzgerald, Los Angeles, California
James M. Gaitis, Whitefish, Montana
Patricia D. Galloway, Seattle, Washington
Walter G. Gans, New York, New York
Barry H. Garfinkel, New York, New York
Eugene S. Ginsberg, Garden City, New York
Ruth V. Glick, Burlingame, California
George Gluck, New York, New York
Mark J. Goldstein, New York, New York
Herbert H. (Hal) Gray, III, Atlanta, Georgia
James P. Groton, Atlanta, Georgia
A. Holt, Gwyn, Greensboro, North Carolina
Sally Harpole, San Francisco, California
David M. Heilbron, San Francisco, California
John W. Hinchey, Washington, DC
John R. Holsinger, Hackensack, New Jersey
L. Tyrone Holt, Denver, Colorado
Robert A. Holtzman, Los Angeles, California
Carl F. Ingwalson, Jr., San Diego, California
John Kagel, Palo Alto, California
Alan M. Kanter, Bloomsfield Hills, Michigan
Laura A. Kaster, Princeton, New Jersey
Richard H. Kreindler, Frankfort, Germany
A. J. Krouse, New Orleans, Louisiana
Urs M. Laeuchli, San Francisco, California
Louise A. LaMothe, Santa Barbara, California
June R. Lehrman, Los Angeles, California
Larry R. Leiby, Ft. Lauderdale, Florida
Nancy F. Lesser, Washington, DC
Richard A. Levie, Washington, DC
William H. Levit, Jr., Milwaukee, Wisconsin
James R. Madison, Menlo Park, California
Richard R. Mainland, Los Angeles, California
John Burritt McCarthur, Berkeley, CA/Houston, TX
John J. McCauley
Bruce E. Meyerson, Phoenix, Arizona
Lawrence R. Mills, Seattle, Washington
Lawrence W. Newman, New York, New York
Susan H. Nycum, Portola Valley, California
Michael S. Oberman, New York, New York
Philip D. O’Neill, Boston, Massachusetts
Allen Overcash, Lincoln, Nebraska
Elliot E. Polebaum, Washington, DC
Lucy F. Reed, New York, New York
Thomas D. Reese, Palo Alto, California
Barbara A. Reeves, Los Angeles, California
Kathleen A. Roberts, New York, New York
Deborah Rothman, Los Angeles, California
John M. Seitman, Del Mar, California
Vivien B. Shelanski, New York, New York
John A. Sherrill, Atlanta, Georgia
Stanley P. Sklar, Northbrook, Illinois
Allison J. Snyder, Houston, Texas
Francis O. Spalding, San Francisco, California
Stephen S. Strick, New York, NY/Los Angeles, CA
Edna R. Sussman, New York, New York
R. Wayne Thorpe, Atlanta, Georgia
Christi L. Underwood, Orlando, Florida
Curtis E. von Kann, Washington, DC
Robert P. Wax, West Hartford, Connecticut
Robert W. Wachsmuth, San Antonio, Texas
Irene C. Warshauer, New York, New York
Robert P. Wax, Palm Beach Gardens, Florida
Dana Welsh, San Francisco, California
Michael S. Wilk, Houston, Texas
John H. Wilkinson, New York, NY
“The College of Commercial Arbitrators' ‘Best Practices’ is an invaluable tool for arbitrators seeking to skillfully manage their cases in this increasingly complex and challenging environment. It presents the collective wisdom of the top commercial arbitrators in the United States and sets a clear standard for exceptional performance.”
—Chris Poole, President and CEO, JAMS
“The Guide provides informed and expert commentary on the most critical developments in the field, including new and amended rules and case law, arbitrability, summoning nonparties, emergency arbitrations, and evolving practices in construction arbitration. Combined with an in-depth analysis of the wide range of issues that arise in arbitrations, the result is a highly comprehensive and authoritative source of information on the arbitration process.”
—Eric Tuchmann, Senior Vice President, General Counsel and Corporate Secretary, AAA/ICDR
“With arbitration now facing increasing scrutiny and in some cases, criticism, it is more important than ever to highlight its extraordinary potential to resolve disputes in a more cost-effective, timely and thoughtful manner than traditional litigation has resolved them. The College of Commercial Arbitrators Guide to Best Practices, Fourth Edition, provides all parties to an arbitration with the essential tools they need to elevate every aspect of their arbitrations to the highest level. This Guide is both cutting-edge and comprehensive. Because our organization is always laser-focused on best practices, there will always be a space for it in The CPR Institute’s library.”
—Noah J. Hanft, President & CEO, The International Institute for Conflict Prevention & Resolution (CPR)
"At a time when concerns about costs, delays and results in commercial arbitration continue to dominate current discourse, it is critical for arbitrators and counsel to take the lead in addressing these concerns with realistic practical solutions. The College of Commercial Arbitrators Guide to Best Practices is not only an important contribution to the literature, but a significant step in the direction of responsible stewardship by those active in the field. It should be an essential addition to the practitioner's library."
--Thomas J. Stipanowich, Academic Director, Strauss Institute for Dispute Resolution; Professor of Law, Pepperdine School of Law; Former President and CEO, CPR
"This volume is a treasured resource for every stakeholder in the commercial arbitration process: business parties and their advocates, arbitrators, ADR provider organizations and policy makers. ... This book sparkles with precise, detailed guidance regarding matters large and small. ... A short review cannot do justice to the rich insights that lace this book. This rich volume provides guidance to all players on how to manage and tailor the process without sacrificing its core values of advocate responsibility, procedural efficiency and process fairness."--Dispute Resolution Magazine, ABA Section of Dispute Resolution; Reviewed by Professor Joseph B. Stulberg, Michael E. Moritz Chair in Alternative Dispute Resolution at the Ohio State University Mortiz College of Law
"The best practices set forth in the Guide are aimed at realizing the benefits of commercial arbitration in any given dispute. Therefore the Guide should be consulted by anyone interested in effectively using and improving one's experience with commercial arbitration." -- Stefan B. Kalina, Cox Padmore Skolnik & Shakarchy, LLP; NYSBA New York Dispute Resolution Lawyer
"The College of Commercial Arbitrators once again demonstrates its leadership with this newest edition of their Guide to Best Practices in Commercial Arbitration. For anyone seeking to understand how to improve arbitral practices, this is one book to read. This book is an important contribution to ensuring arbitration lives up to its promise as a fair, efficient, and cost effective solution for commercial disputes"
--Kathy Bryan, former President and CEO, CPR: International Institute for Conflict Prevention & Resolution
"While chiefly addressed to arbitrators, it will also serve advocates well. In addition to other attributes, this book examines contemporary topics which are not typically discussed. Highly readable and very useful."
--William K. Slate II, former President and CEO, American Arbitration Association
Winslow Christian, James M. Gaitis, A. Holt Gwyn, Carl F. Ingwalson, Jr., Laura A. Kaster, June R. Lehrman, John J. McCauley, Vivien B. Shelanski, Curtis E. von Kann, and Robert W. Wachsmuth
Chapter 2 - APPOINTMENT, DISCLOSURES, AND DISQUALIFICATION OF NEUTRAL ARBITRATORS
James H. Carter, Richard Chernick, Peter D. Collisson, Paul J. Dubow, Ruth V. Glick, Robert A. Holtzman, June R. Lehrman, James R. Madison, John J. McCauley, Bruce E. Meyerson, and Michael S. Oberman
Chapter 3 - NONNEUTRAL ARBITRATORS
Richard Chernick, James M. Gaitis, and Robert A. Holtzman
Chapter 4 - ARBITRATOR FEES AND EXPENSES
John T. Blankenship, Louis Coffey, Philip E. Cutler, Neal M. Eiseman, A. Holt Gwyn, Laura A. Kaster, Allison J. Snyder, and Curtis E. von Kann
Chapter 5 - DETERMINING JURISDICTION AND ARBITRABILITY
William G. Bassler, R. Doak Bishop, Robert B. Davidson, Richard Chernick, James M. Gaitis, Barry H. Garfinkel, Carl F. Ingwalson, Jr., Alan M. Kanter, June R. Lehrman, James R. Madison, and John J. McCauley
Chapter 6 - PREHEARING CONFERENCES AND PREHEARING MANAGEMENT IN GENERAL
David N. Brainin, William B. Fitzgerald, James P. Groton, Carl F. Ingwalson, Jr., Laura A. Kaster, John J. McCauley, Gerald F. Phillips, Deborah Rothman, Vivien B. Shelanski, Allison J. Snyder, Curtis E. von Kann, and John H. Wilkinson
Gary L. Benton, Joseph F. Canterbury, Jr., Deborah A. Coleman, Louise E. Dembeck, Eugene I. Farber, A. Holt Gwyn, Carroll E. Neesemann, Robert W. Wachsmuth, and Dana Welsh
John M. Barkett, R. Doak Bishop, M. Scott Donahey, James W. Durham, James M. Gaitis, George Gluck, Marc J. Goldstein, David M. Heilbron, John A. Holsinger, Louise A. LaMothe, John J. McCauley, Kathleen A. Roberts, Deborah Rothman, John M. Seitman, Stanley P. Sklar, R. Wayne Thorpe, and Robert P. Wax
Chapter 9 - SUMMONING NONPARTY WITNESSES
John M. Barkett, George Gluck, Marc J. Goldstein, John A. Holsinger, and John J. McCauley
A. J. Krouse, Louise A. LaMothe, Nancy F. Lesser, Susan H. Nycum, Barbara A. Reeves, Deborah Rothman, Irene C. Warshauer, and John H. Wilkinson
Chapter 11 - THE HEARING ON THE MERITS
Henri C. Alvarez, William L. D. Barrett, Louis A. Craco, William B. Fitzgerald, James P. Groton, A. Holt Gwyn, John J. McCauley, John A. Sherrill, Allison J. Snyder, and Curtis E. von Kann
Chapter 12 - AWARDS AND SUBSTANTIVE INTERLOCUTORY ARBITRAL DECISIONS
John A. Barrett, Thomas J. Brewer, Jay W. Elston, James M. Gaitis, Richard A. Levie, John Burritt McArthur, Michael S. Oberman, and Michael S. Wilk
Chapter 13 - POSTAWARD MATTERS
John K. Boyce, III, Paul J. Dubow, James M. Gaitis, Larry R. Leiby, James R. Madison, Lawrence R. Mills, Stephen S. Strick, Christi L. Underwood, and David E. Wagoner
Chapter 14 - EMERGENCY ARBITRATORS
James M. Gaitis and Michael S. Wilk
Chapter 15 - INTRATRIBUNAL RELATIONS
John T. Blankenship, Louis Coffey, Philip E. Cutler, A. Holt Gwyn, and Curtis E. von Kann
Chapter 16 - CLASS ARBITRATION
William L. D. Barrett, Robert B. Davidson, Eugene I. Farber, James M. Gaitis, Louise A. LaMothe, James R. Madison, Bruce E. Meyerson, Deborah Rothman, Francis O. Spalding, and John H. Wilkinson
Chapter 17 - UNIQUE ISSUES IN CONSTRUCTION ARBITRATION
Albert Bates, Jr., John E. Bulman, Patricia D. Galloway, Neal M. Eiseman, Herbert H. (Hal) Gray, III, A. Holt Gwyn, John W. Hinchey, Allen Overcash, and Stanley P. Sklar
Chapter 18 - INTERNATIONAL ARBITRATION (Preliminary Matters)
Gerald Aksen, Axel Baum, Robert B. Davidson, James M. Gaitis, Sally Harpole, Richard H. Kreindler, Urs M. Laeuchli, Lawrence W. Newman, Philip D. O’Neill, Elliot E. Polebaum, and Lucy F. Reed
Chapter 19 - INTERNATIONAL ARBITRATION (Conduct of Proceedings)
Gerald Aksen, Axel Baum, Robert B. Davidson, James M. Gaitis, Sally Harpole, Richard H. Kreindler, Urs M. Laeuchli, Lawrence W. Newman, Philip D. O’Neill, Elliot E. Polebaum, and Lucy F. Reed
Chapter 20 - HYBRID ARBITRATION PROCESSES
Trey Bergman, Thomas J. Brewer, William H. Levit, Jr., Richard R. Mainland, Gerald F. Phillips, and Edna R. Sussman
Appendix I - GUIDANCE NOTE: ARBITRATION AND SOCIAL MEDIA
Thomas D. Halket, Chair, Stephen P. Gilbert, Herbert H. (Hal) Gray, III, Larry D. Harris, Robert A. Holtzman, William H. Lemons, Peter L. Michaelson, Edna Sussman, Irene C. Warshauer, and John H. Wilkinson
Appendix II - GUIDANCE NOTE: SECURITY OF AN ARBITRATOR’S ELECTRONIC INFORMATION
Gerald G. Saltarelli, William H. Levit, Jr., and Mitchell L. Marinello
Index