The Arbitration Rules: Procedural Rulemaking by Arbitration Providers

52 Pages Posted: 15 Apr 2020

See all articles by David Horton

David Horton

University of California, Davis - School of Law

Date Written: March 25, 2020

Abstract

The field of civil procedure revolves around the Federal Rules. However, there is an alternative procedural universe. The Supreme Court’s relentless expansion of the Federal Arbitration Act funnels tens of thousands of disputes every year into arbitration administrators, such as the American Arbitration Association and JAMS. These entities have created their own procedural codes for cases that they administer. Although these “Arbitration Rules” govern some of the most important topics in dispute resolution, they have flown below the radar in both the procedure and the arbitration literature.

This Article explores this parallel procedural track. It begins by explaining that the Arbitration Rules deviate from court-based procedures in three important ways. First, unlike the Federal Rules, which are created by experts who solicit input from affected parties, most Arbitration Rules are written in secret by for-profit corporations. Second, the Federal Rules are trans-substantive and uniform, but the Arbitration Rules vary between providers and case types. Third, the Federal Rules try to balance efficiency and accuracy, but the Arbitration Rules unabashedly favor speed over precision. The Article then analyzes the costs and benefits of this novel form of procedural rulemaking, contributes to the debate over forced arbitration, and suggests solutions to unsettled doctrinal issues.

Suggested Citation

Horton, David, The Arbitration Rules: Procedural Rulemaking by Arbitration Providers (March 25, 2020). Minnesota Law Review, Vol. 105 (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3561137

David Horton (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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