The Long and the Short of Reasoned Awards - Chapter 11 - 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 Nine–Fourteen: How to write a reasoned award. The six chapters in Part Three, the book’s longest section, discuss how to write reasoned awards. They are written primarily, of course, for arbitrators. Because these chapters propose standards for writing adequately reasoned versions of the award’s various sections, they can also assist parties and their counsel when they are considering challenging awards for lack of reasons, or considering defending them against such attacks. The chapters should help courts weighing the merit of attacks that claim the award needed to say more than it did as well.
Chapter Eleven focuses on whether to write “long” or “short” reasons, with this decision directly connected to how much detail the parties want and how much they are willing to pay for award writing;
The how-to chapters are likely to be most useful for arbitrators, for judges who want to consider the similar issues that come up in opinion drafting, and for losing parties who want to think about whether the arbitrators erred so grievously by failing to explain themselves on a particular matter that a vacatur battle is warranted. The chapters illustrate their discussion with examples drawn from the awards (defectively reasoned and well-reasoned, respectively) in Appendices A and B.All six chapters are based upon the belief that concrete demonstration generally trumps abstract discussion, just as so often showing beats telling.
from Chapter 11. The Long and the Short of Reasoned Awards
Deciding how much detail an award needs is a vital part of the arbitrator’s craft, just as making the decision about the level of detail in a judicial opinion is a vital part of the judge’s craft. Award detail and length have to be able to vary within the same form of award for arbitration to be an efficient process, with length one variable arbitrators can adjust to fit circumstances.
There is no standard-length award, just as there is no standard-length judicial opinion. Arbitrators must provide reasons that address the matters presented by the parties in every reasoned award, but they retain very wide authority to decide what matters are truly relevant. The ability to find the proper level of detail separates the professional from the amateur in the decision-making world.
A. Variations in Length
The level of detail needed to explain a decision is not fully fixed by an arbitration’s subject, complexity, or any other single factor. Styles of writing awards, like styles of trying cases, vary widely. Courts almost never vacate an award because it is reasoned but not detailed enough, not, that is, unless a lack of details means that the arbitrators ignored a claim, a key claim element, vital evidence, or a material defense. A reasoned award needs enough information that the parties can understand why the arbitrators ruled as they did or, to put it another way, the award needs enough information that the parties can understand how the arbitrators moved by “a logical process of reasoning from premises through principles to conclusions” on the issues the parties showed mattered to them.