Arbitrator Discretion: Should It be Restricted by Party Stipulation of Governing Procedural Rules? - Chapter 15 - AAA/ICDR Handbook on International Arbitration Practice

James J. Sentner, Jr., a partner at Gardere Wynne Sewell LLP, in the firm’s Houston office, has an international arbitration and litigation practice involving energy, products liability, and commercial and marine construction. Mr. Sentner also has significant experience in insurance law coverage disputes. He is a member of the advisory board of the Institute for Transnational Arbitration and the Arbitration Committee of the International Bar Association.

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Originally from AAA/ICDR Handbook on International Arbitration Practice

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Model arbitration agreements suggested by institutional arbitration providers tend to be brief and do not address the specifics of procedural arbitration rules. Their primary purpose is to secure the enforceable referral of disputes to arbitration and their respective tribunals. Even the rules these organizations promulgate do not contain detailed procedures. They primarily provide a basic framework upon which the tribunal can establish procedures designed to ensure a fair and efficient hearing. Therefore, the extent to which such things as discovery will be permitted can turn on variables like the arbitrators’ judicial background and temperament or where the arbitration is seated.

Due to some unhappy experiences, arbitration practitioners concerned about the leeway granted to arbitrators1 have taken to putting meat on the bones of model arbitration clauses to predetermine the procedural rules that will be implemented during an arbitration proceeding.