Chapter Fifteen: Intratribunal Relations - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor 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.
Mr. Gwyn is a founding member of and former Chair of the Section of Construction Law, North Carolina Bar Association. He is a Charter Member of the N.C. Academy of Superior Court Mediators. He has served as arbitrator on many AAA, ICDR, ICC, and CPR administered arbitrations and also serves on the AAA’s Construction Mega Panel and Large, Complex Case Program Panel of Arbitrators and Neutrals; he is included on the CPR International Institute Distinguished Panels of Neutrals, including its Environmental and Construction Panels. For more than a decade, he has been regularly listed in Best Lawyers in America, Super Lawyers (Corporate Counsel Edition), and Who’s Who in American Law.
From 2007 to 2014, Mr. Gwyn was the Editor in Chief of the Journal of the American College of Construction Lawyers, published by Thomson-Reuters-West. From 1996 to 2004, Mr. Gwyn served as a Charter Trustee of North Carolina’s Clean Water Management Trust Fund.
He is a graduate of the University of North Carolina, Chapel Hill (BA 1971) and Wake Forest University School of Law (JD 1976).
John T. Blankenship, Franklin, Tennessee/Sparta, Tennessee
Louis Coffey, Philadelphia, Pennsylvania
Philip E. Cutler, Seattle, Washington
Curtis E. von Kann, Washington, DC
The goal of arbitrators who are members of a three-arbitrator tribunal is to conduct their interactions so as to best ensure a fair, expeditious, and cost-effective proceeding and secure for the parties the benefits they sought to obtain when they elected to have their dispute determined by more than one arbitrator.
Commercial arbitrators often serve with other arbitrators on three-arbitrator tribunals. Achieving effective performance of tripartite arbitration tribunals is not easy, due in part to the tremendous diversity that often attends their use and composition. Such tribunals are used in a wide variety of arbitrations, including some very large cases and some relatively small cases. Many tripartite arbitrations involve claims encompassing tens of millions, if not hundreds of millions, of dollars. For a variety of reasons, however, tripartite arbitrations also can involve lesser sums of money. For example, when the parties’ contract incorporates the AAA Rules, Rule L‑2(a) provides that claims for $1 million or more will be resolved by three arbitrators unless the parties agree otherwise.
A $1 million claim is no doubt a substantial sum. But in context, if one considers how quickly costs accrue when three experienced arbitrators and a minimum of two experienced lawyers acting as counsel, along with paralegals and legal assistants, are charging their hourly rates, the total arbitral costs can easily become a not insubstantial percentage of the amount in dispute. Moreover, many commercial contracts provide for tripartite arbitration of any dispute arising under the contract, with the result that tripartite arbitrations sometimes involve claims of significantly less than $1 million. The default process under the CPR Non-Administered and Administered Rules calls for a tripartite tribunal regardless of the size of the claim. CPR Non-Administered and Administered Rule 5.1. In addition, disputes that appear from the original pleadings to involve very large claims may actually involve less for a variety of reasons, including the propensity of some advocates to inflate their assertions of damage. In short, tripartite arbitration may occur in a big case, a small case, or everything in between.