The Reasoned Arbitration Award in the United States: Its Promise, Problems, Preparation, and Preservation
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The Reasoned Arbitration Award in the United States examines the persistence in U.S. domestic arbitration of "standard" awards, which contain no reasons or explanations for their outcome. Such unexplained awards no longer are acceptable in international practice, except on the rare occasion when both parties request them. John Burritt McArthur explains that much of the continuing lure of "silent" awards in U.S. arbitration stems from the misconception that these awards – by their lack of reasons -- are less prone to challenge, quicker and cheaper to write, and therefore more desirable than reasoned awards. These beliefs are wrong, but awards that only hint at their reasons – awards reasoned in name only – have been approved as reasoned by the leading opinion on how to test awards for reasons, the Eleventh Circuit’s 2011 opinion Charter LLC v. Schurtenberger, 646 F.3d 836 (11th Cir. 2011). The Cat Charter opinion encourages confirming awards that say so little that the arbitrators really explain nothing. The opinion paradoxically has increased challenges to the form of awards, because it helped spread the understanding that awards can be vacated for lacking reasons, yet has resulted in many unreasoned awards being confirmed as if they are reasoned. The result is that parties in domestic U.S. arbitration are at high risk of never getting the reasons they deserve when they ask for them or arbitration rules require them. The book argues that the arbitration community must develop a clear, industry-wide definition for a reasoned award. It provides all the information needed to do that.
The Reasoned Arbitration Award in the United States addresses the serious problem created by the lack of a clear, effective definition of this most common award. It analyzes in detail the unreasoned awards that courts, beginning with the Eleventh Circuit in Cat Charter, have confirmed as reasoned. Telling parties that these awards are sufficiently “reasoned” to pass in arbitration will, as the author demonstrates in detail, badly undermine the legitimacy of U.S. arbitration. The treatise sheds light on how damaging the Cat Charter standard for reasoned awards already has been. It does the following toward that end:
- Provides a clear and effective definition of “reasoned award”;
- Explores opinions that do require real reasons and vacated unreasoned awards;
- Analyses, in contrast, awards that lacked comprehensible reasons and opinions that confirmed them anyway, beginning with Cat Charter;
- Discusses how to write each section of a reasoned award;
- Illustrates good and bad awards with dozens of examples;
- Makes the full text of 12 inadequately reasoned awards and 10 well-reasoned awards available to readers for further study;
- Identifies the six main categories of unreasoned awards trying to pass as reasoned;
- Explains why the criticisms that reasons make awards vulnerable, and that they make awards too costly, are incorrect;
- Complies vacatur rates for each ground of vacatur over an eight-year period to show that the vulnerability theory is incorrect;
- Recommends reforms that will strengthen the clarity and legitimacy of reasoned awards
This thought-provoking work explains that the very effectiveness and desirability of arbitration is at stake because it is only through the truly reasoned award that the parties are provided with proof that they have been heard.
THE REASONED ARBITRATION AWARD IN THE UNITED STATES
Its Promise, Problems, Preparation, and Preservation
CONTENTS
Foreword
Getting the Most Out of This Book
PART ONE. REASONED AWARDS AND THEIR VIRTUES
1. Reasoned Awards, Properly Defined and Enforced
A. A Workable Definition of “Reasoned Award"
B. Taking Reasons Seriously: Western Employers Ins. Co. v. Jefferies & Co.
C. Proper Judicial Review Illustrated: Galloway Construction Co. v. Utilipath and Tully Construction Co. v. Canam Steel Corp.
(Tully 1) (18).
2. The Patchwork of Domestic Rules on Award Form
A. The Divide between the AAA and FINRA, and CPR and JAMS
B. But the AAA Has Adopted a Reasoned-Award Default for Many Specialized Areas
C. Treatises and Precedent Still Look Back to an Older Predominance of Standard Awards
3. The Many Benefits of Reasoned Awards
A. Building Legitimacy with the Parties
B. Building Institutional Legitimacy
C. Forcing Better Decision making
D. Sharpening Judicial Review
E. Satisfying Pragmatic Party Needs
F. Screening Arbitrator Quality
G. Promoting Arbitrators Who Do Explain
H. Arbitration’s Comparative Advantage: The Certainty of Getting Reasons
I. Improving the Quality of Arbitration over Time
PART TWO. THREATS TO REASONED AWARDS
4. The Failure of Judicial Review for Reasons
A. The Original Sin: The Eleventh Circuit's Porous Test Upholds a Standard Award as Reasoned in Cat Charter, LLC v.
Schurtenberger
B. The Fifth Circuit's Rain CII Carbon, LLC v. ConocoPhillips Upholds an Unreasoned Contentions Award
C. Et Tu, Second Circuit? The Second Circuit Boards the Cat Charter Train
D. Tully 2: We Barely Knew You, Tully 1
E. State Stores, the Unfortunae Older Opinion Green v. Ameritch, and the Fruits of Cat Charter's Poisonous Tree
F. Courts Have Not Been This Confused about Reasons in Other Settings
5. The Pathologies of Unreasoned Awards
A. Implausibly Short Announcement Awards.
B. Attestation Awards
C. Burden and Credibility Awards
D. Other “More than a Simple Result” Awards: Issue-Spotting and Contention Awards
E. Volumetric Awards
F. Evidentiary List Awards
G. Judicial Divination Awards
H. Merits-Tested Awards.
6. Exceeded-Powers Vacatur and the Vulnerability Myth
A. The Ubiquity of the Vulnerability Myth
B. Holding Arbitrators to Their Powers
C. Strong Deference: Courts Will Reject Exceeded-Powers Challenges as Long as the Arbitrators Tried to Construe
the Governing Standards
D. But Not a Blank Check: Courts Will Vacate When Arbitrators Disregard a Plain Limit on Their Powers
E. Exceeded-Powers Challenges Fail More than 80 Percent of the Time
F. Reasons Usually Strengthen Awards Challenged for Exceeding Powers
1. Reasons Usually Protect Awards
2. Reasons Rarely Are the Problem When Arbitrators Exceed Plain Powers
3. The Vulnerability Theory Is Even Less Plausible Whenever Awards Turn on Facts, Procedures, Evidence, Remedies,
or Equity
4. Giving Reasons No Longer Implies Consent to Judicial Review for Mistakes of Law
5. Reasons Do Remove Speculative Grounds for Upholding Awards
6. Reasons Make It Easier to Vacate Awards That Truly Exceed Powers
G. Exceeded-Powers Vacaturs Overturn Awards for Mistakes of Law
H. Judicial Scrutiny for Exceeding Powers Benefits Arbitration
7. The Other Grounds for Vacatur and the Vulnerability Myth
A. The Big Picture
B. Reasons Are the Most Powerful Antidote to Manifest-Disregard Challenges
1. Manifest Disregard Doctrine Is Excruciatingly Restrictive
2. Reasons Strengthen Awards against Manifest-Disregard Attack
3. Courts Almost Never Overturn Awards for Manifest Disregard
C. Public Policy, a Third Avenue for Correcting Mistakes of Law
1. Courts Will Not Confirm Awards That Violate Clear, Well-defined, Dominant Public Policies.
2. Public-Policy Vacatur Almost Never Turn on Award Reasoning.
3. Here as Elsewhere, Extreme Outcomes Increase the Risk of Ghallenges and of Vacatur
D. The Three Misconduct Violations
1. Evident Partiality Challenges Usually Turn on Behavior, Particularly Disclosure, Not on Award Reasoning
2. Arbitrator Misconduct Is Rare and Almost Never Is Based upon Award Reasoning
3. Party “Fraud, Corruption, or Undue Means” Is as Rare as Arbitrator Misconduct
E. The Grab-Bag Standards: "Completely Irrational," "Arbitrary and Capricious," "Fails to Draw Its Essence," and
Other Secondary Attacks
F. The Underused Section 10(a)(f) Power to Challenge Imperfectly Executed Awards
G. The Bottom Line: Reasons Usually Strengthen Awards
8. The Inefficiency Critique
A. Inefficiency Arguments, Like the Vulnerability Argument, Are Overstated
B. The Misleading Cost Objection
C. Increasing Scrutiny of Reasoned Awards: Short-Term Costs, Yes, but Long-Term Gains
PART THREE. WRITING REASONED AWARDS
9. Setting the Stage, Building the Foundation
A. The Overview and Short History
B. Gateway and Framework
1. Jurisdiction: Appointment
2. Jurisdiction: Validity of Agreement
3. Jurisdiction: Subject Matter (“Scope”) of the Agreement to Arbitrate
4. Jurisdiction: Parties
5. Applicable Law, and What It Means
6. Applicable Rules
7. Burden of Proof
8. Statutes of Limitations: How Could They Not Apply?
9. The Award's Forum
10. Class Arbitration
11. Discovery Rulings and Other procedural Decisions
12. Dispositive Rulings.
10. Defining the Questions
A. Framing the Submission Using the Parties' Briefs and Presentations
B. The Minimum: Explaining Every Potentially Dispositive Claim, Counterclaim, Defense, and Remedy
C. Narrowing the Focus: Saving Time and Money
D. Addressing Alternative, Belt-and-Suspender Claims, Defenses, and Remedies
E. Addressing the Losing Party's Claims, Defenses, and Remedies Too
F. Sometimes, but Rarely, Helpful: Proposed Awards
G. Risky Behavior: Leaving Reasons "Implicit" or Ignoring Them as Frivolous
H. Insufficient Reasons: Just Saying Whether the Arbitrators Did Their Job, a Position Was Credible, and a
Party Met Its Burden
I. No, No: Never Inject New Issues, Arguments, Claims, Counterclaims, Defenses or Remedies
11. The Long or Short, Detailed or Abbreviated, Reasoned Award
A. Variations in Length
B. Examples of Adjusting Length
C. Length and the Inefficiency Critique
D. Cost: No Barrier to Adequate Reasoning
E. Factors Driving Award Length
F. Special Problems of Awards in Nonnegotiated Arbitrations: Consumer, Employment, and Other Awards
G. Can an Award Be Too Reasoned: Yes
12. Narrating the Facts
A. The Centrality of Facts to Almost All Arbitrations
B. Arbitrators Better Positioning than Judges to Explain the Facts
C. Arbitrators Broad Discretion over the Factual Narrative’s Order, Structure, and Level of Detail
D. Describing Factual Contentions and Then Announcing a Resolution: Not Enough
E. Arranging the Facts with an Eye to Pertinent Law
F. Explaining Credibility and Other Seemingly Holistic Judgments
G. Compressing Facts, Omitting Irrelevant Evidence and Explaining Why
H. The Protective Effects of Full Explanations
I. The Prudence of Sometimes Discussing Non-Dispositive Facts
13. Laying Down the Law
A. The Choice of Applicable Law
B. Identifying and Explaining Dsiputed Elements of Claims, Defenses, and Remedies
C. Don't Forget Defenses?
D. Reasons Why Some Arbitrators May Slight the Law in Reasoned Awards
E. Applying the Law to the Facts
F. Explaining "Pure" Questions of Law, Including in Dispositive and Appellate Awards
14. Explaining Remedies and Closing the Award
A. Remedies and Discretion: The Rule of Law Question
1. Decisions on Damages and Other Remedies Actual Damages
2. We Find Party A's Expert Most Reasonable": Not an Adequate Reason
3. Attorney's Fees and Costs
4. Punitive Damages
5. Equitable Relief
6. Sanctions
7. Pre- and Post-award and Post-judgment Interest
B. Award Finality
1. Finality and Completeness
2. Conforming Award Labels and Contents: Interim or Final, Partial or Complete?
C. Closing: The Swansong
D. Whether to Dissent (and How)
E How to Write Reasoned Awards, Revisited
PART FOUR. REASONS IN OTHER AWARD FORMS
15. Making Standard Awards More Reasonable
A. Adding Reasonableness, but Not Reasons
1. The One-Page Announcement Award
2. Strengthening Standard Awards with Non-Explanatory Detail
3. Standard-Form Dissents and Interim, Emergency and Dispositive Awards
B. Minimizing Cost and Time
C. Resisting Temptation: Don't Get Smart (This Means You!)
D. What Arbitrators Should Ask the Parties
E. Supplementing with Off-the-Record Oral Explanations
16. Improving Findings of Fact and Conclusions of Law
A. Reasoned Awards and Findings and Conclusions Should Be Stubstantive Equals
B. Good Narrative Writing and Structure Often Will Improve Findings and Conclusions
C. The Same Reasoned Requirement Applies to Findings and Conclusions as to Reasoned Awards
PART FIVE. REFORMS AND IMPROVEMENTS
17. Necessary Reforms
A. A Conscious Definition of Reasoned Awards
B. Defining Standard Awards
C. Defining Findings and Conclusions
D. Arbitration Statutes Should Define Major Award Form
E. Reconsidering AAA and FINRA Default Award Forms
F. Establishing an Exception to Functus Officio for Furninshing Reasons
G. Standardizing Meanings for Interim Awards, Partial Awards, and Final Awards
H. A New Weapon against Imperfect Reasoning: FAA Section 10(a)4's Imperfect-Execution Grounds
I. Improving Arbitration in the United States
18. It Is the Parties' Arbitration
Rules and Statutes
I. Domestic Arbitration Rules, Protocols and Procedures
II. International Arbitration Rules
III. Miscellaneous Rules
Notes on the Appendix
APPENDIX (below)
A. Unreasoned Awards
1. The Western Employers’ Award
2.a. The Tully Final Award of Arbitrator
2.b. The Tully Arbitrator’s Emailed Refusal to Provide Reasons
2.c. The Tully Final Enlarged, Reasoned Award of Arbitrator
3. The Galloway Arbitration Decision and Award
4. The Cat Charter Award of Arbitrators
5. The Rain CII Carbon Award of Arbitrator
7. The Stage Stores Amended Final Award
8. The STMicroelectronics Award
9. The Vold Award of Arbitrator
B. Reasoned Awards
1. The Forrest Final Award
2. The Sarofim Final Award
3. The Carmody Award
4.a. The Oxford Health Plans Memorandum and Order (rejecting argument that the arbitration could not be a class arbitration)
4.b. The Oxford Health Plans Partial Final Class Determination Award of Arbitrator
4.c. The Oxford Health Plans Procedural Order No. 18 Determining Motion (rejecting argument that Stolt-Nielsen opinion required
decertification)
5. The Stolt-Nielsen Partial Final Clause Construction Award
C. Source of Major Awards Cited in Text
D. Summary of Exceeded-Powers Opinions Vacating 43 Awards for Seemingly Obvious Violations of Written Standards
E. Summary of Second Circuit Manifest-Disregard Opinions
F. Summary of Public-Policy Opinions Vacating 27 Awards
G. Notes on Methodology for Study of 2010-2017 Westlaw Keynote Vacatur Cases
H. Notes on Estimating the Total Number of Arbitration Awards Issued Annually
John Burritt McArthur has been serving as an arbitrator since 1994. He has 23 years of experience as an arbitrator, 34 years as a trial lawyer in state and federal courts around the country, and is licensed to practice in Texas, California, and Alaska as well as in a variety of federal courts. He was a Partner at Susman Godfrey LLP, worked for Hosie McArthur LLP for several years, and today has a solo practice that combines arbitration practice with complex commercial trials. He has major litigation and arbitrator experience in five main areas: Energy, Oil and Gas, Electricity; Contract and Tort Business Disputes, including UCC Disputes; Antitrust; Investment Disputes, Fiduciary and Joint Venture Claims, Securities and Insurance. Mr. McArthur's broad work experience is equally suited to business and commercial arbitrations. He has represented plaintiffs and defendants in large, often highly technical commercial cases throughout his career. He has handled federal and state court cases, arbitrations, cases in MDL proceedings and class actions. His clients have ranged from some of the world's largest corporations, including Aetna and British Petroleum, to Alaska native corporations, States, individuals and small businesses. Mr. McArthur has been acknowledged for his litigation experience by his peers. He is currently chair of the LCA's International Institute on Natural Resources, Energy and Environmental Law. He has long held an "av" rating from Martindale-Hubbell. He is a member of the Million-Dollar and Multi-Million-Dollar Advocates Forum. He has published dozens of articles on legal issues, including on energy issues, arbitration, case management, various aspects of deregulation, and antitrust. He has also served as an expert in energy cases. A statement of his arbitration philosophy can be found at http://www.johnmcarthurlaw.com/arbitration.htmz.
"The book’s treatment of the issues is at once thorough, rigorous and readable, and will be of great pragmatic assistance to parties, counsel and arbitrators working in the field of commercial arbitration. I welcome all the hard work and good thinking that went into this project, and predict the book will be a thought-leader in our field for years to come." (Full review)
―Thomas J. Brewer, Independent Arbitrator
"Many thanks to John McArthur for this superb and edifying contribution to the field of arbitration. The book should dispel the old canard that a “reasoned award,” properly written, is more vulnerable to vacatur than a so-called “standard” (i.e., unreasoned, conclusory) award. And it should serve as an informative, practical guide for every arbitrator who wants to improve his/her award writing. I hope the book will enlighten arbitrators, parties and lawyers about the desirability and importance of properly reasoned awards and stiffen courts’ resolve to enforce such agreements where parties have contracted for them."
― Gary V. McGowan, McGowan Arbitration and Dispute Resolution
John Burritt McArthur has been serving as an arbitrator since 1994. He has 23 years of experience as an arbitrator, 34 years as a trial lawyer in state and federal courts around the country, and is licensed to practice in Texas, California, and Alaska as well as in a variety of federal courts. He was a Partner at Susman Godfrey LLP, worked for Hosie McArthur LLP for several years, and today has a solo practice that combines arbitration practice with complex commercial trials. He has major litigation and arbitrator experience in five main areas: Energy, Oil and Gas, Electricity; Contract and Tort Business Disputes, including UCC Disputes; Antitrust; Investment Disputes, Fiduciary and Joint Venture Claims, Securities and Insurance. Mr. McArthur's broad work experience is equally suited to business and commercial arbitrations. He has represented plaintiffs and defendants in large, often highly technical commercial cases throughout his career. He has handled federal and state court cases, arbitrations, cases in MDL proceedings and class actions. His clients have ranged from some of the world's largest corporations, including Aetna and British Petroleum, to Alaska native corporations, States, individuals and small businesses. Mr. McArthur has been acknowledged for his litigation experience by his peers. He is currently chair of the LCA's International Institute on Natural Resources, Energy and Environmental Law. He has long held an "av" rating from Martindale-Hubbell. He is a member of the Million-Dollar and Multi-Million-Dollar Advocates Forum. He has published dozens of articles on legal issues, including on energy issues, arbitration, case management, various aspects of deregulation, and antitrust. He has also served as an expert in energy cases. A statement of his arbitration philosophy can be found at http://www.johnmcarthurlaw.com/arbitration.htmz.
"The book’s treatment of the issues is at once thorough, rigorous and readable, and will be of great pragmatic assistance to parties, counsel and arbitrators working in the field of commercial arbitration. I welcome all the hard work and good thinking that went into this project, and predict the book will be a thought-leader in our field for years to come." (Full review)
―Thomas J. Brewer, Independent Arbitrator
"Many thanks to John McArthur for this superb and edifying contribution to the field of arbitration. The book should dispel the old canard that a “reasoned award,” properly written, is more vulnerable to vacatur than a so-called “standard” (i.e., unreasoned, conclusory) award. And it should serve as an informative, practical guide for every arbitrator who wants to improve his/her award writing. I hope the book will enlighten arbitrators, parties and lawyers about the desirability and importance of properly reasoned awards and stiffen courts’ resolve to enforce such agreements where parties have contracted for them."
― Gary V. McGowan, McGowan Arbitration and Dispute Resolution
THE REASONED ARBITRATION AWARD IN THE UNITED STATES
Its Promise, Problems, Preparation, and Preservation
CONTENTS
Foreword
Getting the Most Out of This Book
PART ONE. REASONED AWARDS AND THEIR VIRTUES
1. Reasoned Awards, Properly Defined and Enforced
A. A Workable Definition of “Reasoned Award"
B. Taking Reasons Seriously: Western Employers Ins. Co. v. Jefferies & Co.
C. Proper Judicial Review Illustrated: Galloway Construction Co. v. Utilipath and Tully Construction Co. v. Canam Steel Corp.
(Tully 1) (18).
2. The Patchwork of Domestic Rules on Award Form
A. The Divide between the AAA and FINRA, and CPR and JAMS
B. But the AAA Has Adopted a Reasoned-Award Default for Many Specialized Areas
C. Treatises and Precedent Still Look Back to an Older Predominance of Standard Awards
3. The Many Benefits of Reasoned Awards
A. Building Legitimacy with the Parties
B. Building Institutional Legitimacy
C. Forcing Better Decision making
D. Sharpening Judicial Review
E. Satisfying Pragmatic Party Needs
F. Screening Arbitrator Quality
G. Promoting Arbitrators Who Do Explain
H. Arbitration’s Comparative Advantage: The Certainty of Getting Reasons
I. Improving the Quality of Arbitration over Time
PART TWO. THREATS TO REASONED AWARDS
4. The Failure of Judicial Review for Reasons
A. The Original Sin: The Eleventh Circuit's Porous Test Upholds a Standard Award as Reasoned in Cat Charter, LLC v.
Schurtenberger
B. The Fifth Circuit's Rain CII Carbon, LLC v. ConocoPhillips Upholds an Unreasoned Contentions Award
C. Et Tu, Second Circuit? The Second Circuit Boards the Cat Charter Train
D. Tully 2: We Barely Knew You, Tully 1
E. State Stores, the Unfortunae Older Opinion Green v. Ameritch, and the Fruits of Cat Charter's Poisonous Tree
F. Courts Have Not Been This Confused about Reasons in Other Settings
5. The Pathologies of Unreasoned Awards
A. Implausibly Short Announcement Awards.
B. Attestation Awards
C. Burden and Credibility Awards
D. Other “More than a Simple Result” Awards: Issue-Spotting and Contention Awards
E. Volumetric Awards
F. Evidentiary List Awards
G. Judicial Divination Awards
H. Merits-Tested Awards.
6. Exceeded-Powers Vacatur and the Vulnerability Myth
A. The Ubiquity of the Vulnerability Myth
B. Holding Arbitrators to Their Powers
C. Strong Deference: Courts Will Reject Exceeded-Powers Challenges as Long as the Arbitrators Tried to Construe
the Governing Standards
D. But Not a Blank Check: Courts Will Vacate When Arbitrators Disregard a Plain Limit on Their Powers
E. Exceeded-Powers Challenges Fail More than 80 Percent of the Time
F. Reasons Usually Strengthen Awards Challenged for Exceeding Powers
1. Reasons Usually Protect Awards
2. Reasons Rarely Are the Problem When Arbitrators Exceed Plain Powers
3. The Vulnerability Theory Is Even Less Plausible Whenever Awards Turn on Facts, Procedures, Evidence, Remedies,
or Equity
4. Giving Reasons No Longer Implies Consent to Judicial Review for Mistakes of Law
5. Reasons Do Remove Speculative Grounds for Upholding Awards
6. Reasons Make It Easier to Vacate Awards That Truly Exceed Powers
G. Exceeded-Powers Vacaturs Overturn Awards for Mistakes of Law
H. Judicial Scrutiny for Exceeding Powers Benefits Arbitration
7. The Other Grounds for Vacatur and the Vulnerability Myth
A. The Big Picture
B. Reasons Are the Most Powerful Antidote to Manifest-Disregard Challenges
1. Manifest Disregard Doctrine Is Excruciatingly Restrictive
2. Reasons Strengthen Awards against Manifest-Disregard Attack
3. Courts Almost Never Overturn Awards for Manifest Disregard
C. Public Policy, a Third Avenue for Correcting Mistakes of Law
1. Courts Will Not Confirm Awards That Violate Clear, Well-defined, Dominant Public Policies.
2. Public-Policy Vacatur Almost Never Turn on Award Reasoning.
3. Here as Elsewhere, Extreme Outcomes Increase the Risk of Ghallenges and of Vacatur
D. The Three Misconduct Violations
1. Evident Partiality Challenges Usually Turn on Behavior, Particularly Disclosure, Not on Award Reasoning
2. Arbitrator Misconduct Is Rare and Almost Never Is Based upon Award Reasoning
3. Party “Fraud, Corruption, or Undue Means” Is as Rare as Arbitrator Misconduct
E. The Grab-Bag Standards: "Completely Irrational," "Arbitrary and Capricious," "Fails to Draw Its Essence," and
Other Secondary Attacks
F. The Underused Section 10(a)(f) Power to Challenge Imperfectly Executed Awards
G. The Bottom Line: Reasons Usually Strengthen Awards
8. The Inefficiency Critique
A. Inefficiency Arguments, Like the Vulnerability Argument, Are Overstated
B. The Misleading Cost Objection
C. Increasing Scrutiny of Reasoned Awards: Short-Term Costs, Yes, but Long-Term Gains
PART THREE. WRITING REASONED AWARDS
9. Setting the Stage, Building the Foundation
A. The Overview and Short History
B. Gateway and Framework
1. Jurisdiction: Appointment
2. Jurisdiction: Validity of Agreement
3. Jurisdiction: Subject Matter (“Scope”) of the Agreement to Arbitrate
4. Jurisdiction: Parties
5. Applicable Law, and What It Means
6. Applicable Rules
7. Burden of Proof
8. Statutes of Limitations: How Could They Not Apply?
9. The Award's Forum
10. Class Arbitration
11. Discovery Rulings and Other procedural Decisions
12. Dispositive Rulings.
10. Defining the Questions
A. Framing the Submission Using the Parties' Briefs and Presentations
B. The Minimum: Explaining Every Potentially Dispositive Claim, Counterclaim, Defense, and Remedy
C. Narrowing the Focus: Saving Time and Money
D. Addressing Alternative, Belt-and-Suspender Claims, Defenses, and Remedies
E. Addressing the Losing Party's Claims, Defenses, and Remedies Too
F. Sometimes, but Rarely, Helpful: Proposed Awards
G. Risky Behavior: Leaving Reasons "Implicit" or Ignoring Them as Frivolous
H. Insufficient Reasons: Just Saying Whether the Arbitrators Did Their Job, a Position Was Credible, and a
Party Met Its Burden
I. No, No: Never Inject New Issues, Arguments, Claims, Counterclaims, Defenses or Remedies
11. The Long or Short, Detailed or Abbreviated, Reasoned Award
A. Variations in Length
B. Examples of Adjusting Length
C. Length and the Inefficiency Critique
D. Cost: No Barrier to Adequate Reasoning
E. Factors Driving Award Length
F. Special Problems of Awards in Nonnegotiated Arbitrations: Consumer, Employment, and Other Awards
G. Can an Award Be Too Reasoned: Yes
12. Narrating the Facts
A. The Centrality of Facts to Almost All Arbitrations
B. Arbitrators Better Positioning than Judges to Explain the Facts
C. Arbitrators Broad Discretion over the Factual Narrative’s Order, Structure, and Level of Detail
D. Describing Factual Contentions and Then Announcing a Resolution: Not Enough
E. Arranging the Facts with an Eye to Pertinent Law
F. Explaining Credibility and Other Seemingly Holistic Judgments
G. Compressing Facts, Omitting Irrelevant Evidence and Explaining Why
H. The Protective Effects of Full Explanations
I. The Prudence of Sometimes Discussing Non-Dispositive Facts
13. Laying Down the Law
A. The Choice of Applicable Law
B. Identifying and Explaining Dsiputed Elements of Claims, Defenses, and Remedies
C. Don't Forget Defenses?
D. Reasons Why Some Arbitrators May Slight the Law in Reasoned Awards
E. Applying the Law to the Facts
F. Explaining "Pure" Questions of Law, Including in Dispositive and Appellate Awards
14. Explaining Remedies and Closing the Award
A. Remedies and Discretion: The Rule of Law Question
1. Decisions on Damages and Other Remedies Actual Damages
2. We Find Party A's Expert Most Reasonable": Not an Adequate Reason
3. Attorney's Fees and Costs
4. Punitive Damages
5. Equitable Relief
6. Sanctions
7. Pre- and Post-award and Post-judgment Interest
B. Award Finality
1. Finality and Completeness
2. Conforming Award Labels and Contents: Interim or Final, Partial or Complete?
C. Closing: The Swansong
D. Whether to Dissent (and How)
E How to Write Reasoned Awards, Revisited
PART FOUR. REASONS IN OTHER AWARD FORMS
15. Making Standard Awards More Reasonable
A. Adding Reasonableness, but Not Reasons
1. The One-Page Announcement Award
2. Strengthening Standard Awards with Non-Explanatory Detail
3. Standard-Form Dissents and Interim, Emergency and Dispositive Awards
B. Minimizing Cost and Time
C. Resisting Temptation: Don't Get Smart (This Means You!)
D. What Arbitrators Should Ask the Parties
E. Supplementing with Off-the-Record Oral Explanations
16. Improving Findings of Fact and Conclusions of Law
A. Reasoned Awards and Findings and Conclusions Should Be Stubstantive Equals
B. Good Narrative Writing and Structure Often Will Improve Findings and Conclusions
C. The Same Reasoned Requirement Applies to Findings and Conclusions as to Reasoned Awards
PART FIVE. REFORMS AND IMPROVEMENTS
17. Necessary Reforms
A. A Conscious Definition of Reasoned Awards
B. Defining Standard Awards
C. Defining Findings and Conclusions
D. Arbitration Statutes Should Define Major Award Form
E. Reconsidering AAA and FINRA Default Award Forms
F. Establishing an Exception to Functus Officio for Furninshing Reasons
G. Standardizing Meanings for Interim Awards, Partial Awards, and Final Awards
H. A New Weapon against Imperfect Reasoning: FAA Section 10(a)4's Imperfect-Execution Grounds
I. Improving Arbitration in the United States
18. It Is the Parties' Arbitration
Rules and Statutes
I. Domestic Arbitration Rules, Protocols and Procedures
II. International Arbitration Rules
III. Miscellaneous Rules
Notes on the Appendix
APPENDIX (below)
A. Unreasoned Awards
1. The Western Employers’ Award
2.a. The Tully Final Award of Arbitrator
2.b. The Tully Arbitrator’s Emailed Refusal to Provide Reasons
2.c. The Tully Final Enlarged, Reasoned Award of Arbitrator
3. The Galloway Arbitration Decision and Award
4. The Cat Charter Award of Arbitrators
5. The Rain CII Carbon Award of Arbitrator
7. The Stage Stores Amended Final Award
8. The STMicroelectronics Award
9. The Vold Award of Arbitrator
B. Reasoned Awards
1. The Forrest Final Award
2. The Sarofim Final Award
3. The Carmody Award
4.a. The Oxford Health Plans Memorandum and Order (rejecting argument that the arbitration could not be a class arbitration)
4.b. The Oxford Health Plans Partial Final Class Determination Award of Arbitrator
4.c. The Oxford Health Plans Procedural Order No. 18 Determining Motion (rejecting argument that Stolt-Nielsen opinion required
decertification)
5. The Stolt-Nielsen Partial Final Clause Construction Award
C. Source of Major Awards Cited in Text
D. Summary of Exceeded-Powers Opinions Vacating 43 Awards for Seemingly Obvious Violations of Written Standards
E. Summary of Second Circuit Manifest-Disregard Opinions
F. Summary of Public-Policy Opinions Vacating 27 Awards
G. Notes on Methodology for Study of 2010-2017 Westlaw Keynote Vacatur Cases
H. Notes on Estimating the Total Number of Arbitration Awards Issued Annually