Originally from:

AAA Handbook on Commercial Arbitration, Third Edition

CHAPTER 29

ANOTHER LOOK AT REMEDIES IN ARBITRATION—REVISITED

Harvey W. Berman

I. Introduction

It is widely recognized that arbitrators have broad authority to order any type of relief, even if the relief could not be awarded by a court.   This flexibility can be understood to result, in part, from expansive arbitration clauses that often expressly or impliedly provide the arbitrator with a broad power to design remedies, and from the limited appealability of arbitration awards. Yet many attorneys and arbitrators don’t realize how much flexibility arbitrators have in crafting awards.  While monetary damages are the most common type of relief in commercial cases, arbitrators have frequently awarded equitable and other forms of relief, including specific performance, injunctive relief, consequential damages, liquidated damages, attorneys’ fees and punitive damages. Because of the confidentiality of arbitration, the only opportunity to examine commercial arbitral remedies occurs when an award is made the subject of a court proceeding. In this chapter we will examine some cases in which arbitral remedies have been specifically challenged for the purpose of seeing how arbitrators craft remedies they believe are appropriate, and how the courts have responded to these challenges.