Improving Findings of Fact and Conclusions of Law - Chapter 16 - The Reasoned Arbitration Award in the United States: Its Promise, Problems, Preparation and Preservation
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.
Chapters Fifteen–Sixteen: Writing standard awards and findings of fact and conclusions of law. The next two chapters provide a brief interlude on standard awards and findings of fact and conclusions of law, the latter of course a form of reasoned award. They are addressed primarily to arbitrators tasked with writing these forms of award. [...] Chapter Sixteen discusses how to loosen the formalism that too often hampers findings and conclusions. Findings and conclusions need not always be more detailed or costly to write than reasoned awards, and they can be just as “narrative.” And they need not be written any less clearly.
from Chapter 16. Improving Findings of Fact and Conclusions of Law
This chapter is devoted to one main idea about findings of fact and conclusions of law. It is that courts, parties, counsel, and arbitrators who think that findings and conclusions must be qualitatively more reasoned than reasoned awards are wrong.
A related error is the assumption that findings and conclusions are the most perfect form of reasoned awards, an idea graphically manifest in Cat Charter’s spectrum analysis, so that something called a reasoned award is allowed to be less reasoned. This idea has badly damaged reasoned awards by persuading the Eleventh Circuit and other like-minded courts that the level of explanation in a reasoned award – how far the award must disclose why the arbitrators decided as they did – can be less than in findings and conclusions. That belief is a very serious mistake. Findings and conclusions as well as reasoned awards need to give a meaningful, substantive explanation for every disposition reached. They are different in form, but need not be materially different in substance, and should not be materially different on the most important dimension – both approaches must offer an explanation that makes sense in terms of the dispute raised by the parties. Findings and conclusions often are more detailed than reasoned awards, using record citations where a reasoned award might paraphrase some of the more peripheral evidence, and citing multiple cases when a reasoned award might just note the leading case. But both reasoned forms still should end up offering the same basic explanation. There is no principled reason why both forms of award cannot include the same substance, even though findings and conclusions frequently have more detail.
Findings and conclusions are the least common form of award, and the least favored among parties and domestic arbitrators. Why? Because parties fear them as too expensive; arbitrators resist the added work and artificiality of the form. As the current College of Commercial Arbitrators’ Best Practices Guide observes,
Some arbitrators believe that an award in the form of findings of fact and conclusions of law generally is not desirable because of the additional expense of preparing a formal decision that although common in the courts, may not add value in the commercial context.
It is fair to say that many, many parties, lawyers, and arbitrators share this view.
Most of the suggestions and guidance this book has offered on reasoned awards are just as relevant to findings and conclusions. And both forms of award raise the same key question: When parties ask for one of these reasoned forms of award, what level of reasons do they seek?