Motions - Chapter 7 - The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition
Louise E. Dembeck, Esq., Founder and President, AIMAC Center for Dispute Resolution, New York, New York
Eugene I. Farber, Esq., Partner, Farber, Pappalardo & Carbonari, White Plains, New York
Carroll E. Neesemann, Esq., Senior Counsel, Morrison & Foerster, New York, New York
Robert W. Wachsmuth has 45 years experience in the trial and arbitration of complex business, antitrust, and construction disputes. He is a founding member and has held various offices in the Construction Law Section of the State Bar of Texas and the ABA Forum on the Construction Industry. He is active as an instructor for the AAA, Texas A&M University, and numerous Texas and ABA sponsored educational programs. Mr. Wachsmuth has been a Fellow of the College of Commercial Arbitrators since 2005.
Arbitrators’ goals with respect to motion practice are (1) to encourage motions that are likely to expedite or facilitate the arbitration proceedings, (2) to discourage motions that are not likely to be productive, and (3) to provide a fair, efficient, cost-effective process for party presentations and arbitrator decisions.
Procedures for managing motions in arbitration should reflect the desire to be cost-effective and expeditious without sacrificing a full, fair hearing. Certain motions should be identified and scheduled early in the proceeding, such as motions related to jurisdiction or arbitrability, see Chapter 4, supra, and concerning provisional or injunctive relief. Early consideration may also be appropriate for certain dispositive motions because it may be wasteful to engage in discovery and a full evidentiary hearing if the arbitrators do not have jurisdiction to hear a claim or if all or any portion of a claim is subject to a valid defense, such as statute of limitations, release, or statute of frauds.
The following procedural options regarding motion practice are available to arbitrators:
1. Taking steps to ensure early identification of motions at the preliminary conference;
2. Ordering that no motions can be presented without first 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 really necessary and/or to develop a proposed schedule for written submissions;
5. Requiring either simultaneous or responsive written submissions;
6. Limiting the length of briefs and time for oral argument (if any); and
7. Permitting affidavits or live testimony regarding factual issues.
II. ARBITRAL AUTHORITY TO HEAR MOTIONS
III. TYPES OF MOTIONS
A. Service of Process
B. Jurisdiction and Arbitrability
C. Consolidation and Joinder
D. Preliminary Relief
H. Dispositive Motions
I. Motions in Limine or to Exclude Evidence
L. Disqualification of Arbitrators
M. Modification of Award