A Practical Approach to Affording Review of Commercial Arbitration Awards: Using and Appellate Arbitrator

Abstract

Arbitration awards are supposed to be final. But that finality is sometimes more of a curse than a benefit because it drives parties away from the arbitration process. In this article I discuss ways to address this concern within the arbitration clause itself. I argue that under the commercial rules of the American Arbitration Association it is possible to craft a clause that permits an appeal on issues of law to a panel composed of arbitrators and I offer a series of practical suggestions. I also discuss the idea within the rules of CPR and JAMS. The article also includes a discussion of the impact of the recent U.S. Supreme Court decision in Hall v. Matell, 552 U.S. 576 (2008) on the ability of parties to an arbitration clause to include provisions for review by an appellate arbitrator.

Keywords: arbitration, awards, review, appeal, vacatur

JEL Classification: K12, K19, K40, K41