Chapter Seven: Motions - 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).
Gary L. Benton, Palo Alto, California
Joseph F. Canterbury, Jr., Dallas, Texas
Deborah A. Coleman, Cleveland, Ohio
Louise E. Dembeck, New York, New York
Eugene I. Farber, White Plains, New York
Carroll E. Neesemann, Brooklyn, New York
Robert W. Wachsmuth, San Antonio, Texas
Dana Welsh, San Francisco, California
Arbitrators’ goals with respect to motion practice are to (1) encourage motions that are likely to expedite or facilitate the arbitration proceedings, (2) discourage motions that are not likely to be productive, and (3) provide a fair, efficient, cost-effective process for party presentations and arbitrator decisions.
Procedures for managing motions in arbitration should support cost-effective and expeditious preparation for a full and fair hearing. Motions—including those related to issues concerning arbitrator jurisdiction, arbitrability, interim measures, and dispositive relief—should be identified and normally scheduled for hearing as early in the process as possible so that dates set for the hearing on the merits are not compromised. Early consideration of such issues may avoid wasteful discovery and a full evidentiary hearing if it is determined the arbitrators do not have jurisdiction to hear a claim or if all or any portion of a claim is subject to a valid dispositive defense, such as statute of limitations, release, statute of frauds, or waiver of consequential damages. Time limits should be established for asserting and responding to dispositive and other motions.
The following procedural options regarding motion practice are available to arbitrators:
1. Taking steps to ensure early identification at the preliminary conference of motions that may expedite the process;
2. Ordering that no motions can be presented without the moving party first explaining why they will advance the process and obtaining permission from the arbitrators;
3. Hearing oral argument on the substance of a motion without any written submissions;
4. Compelling counsel to confer about whether the motion is necessary and/or for the purpose of developing a proposed schedule for written submissions on the motion;
5. Requiring either simultaneous or responsive written submissions;
6. Limiting the length of briefs and time for oral argument (if any);
7. Permitting affidavits and use of depositions or live testimony regarding factual issues; and
8. Delaying the filing and/or resolution of dispositive motions until adequate time has been provided for allowed discovery.