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1) Must an arbitrator follow the substantive law or the rules of evidence?
2) What is the scope of judicial review?
(1) NEED NOT FOLLOW the substantive law or rules of evidence. They do justice as they see fit.
(2) JUDICIAL REVIEW IS NARROW—limited to deciding whether arbitration can be avoided or must be compelled, and whether an award can be vacated on grounds of corruption, fraud, misconduct, significant bias, or abuse of power.
5 Threshold Issues to Court Must Decide Re: Whether Arbitration Should Proceed
- Is there an AGREEMENT to arbitrate? Must be in writing, but need not be signed.
- Is dispute within SCOPE of the arbitration clause?
- Is the arbitration clause VALID? (presumption of validity, except where fraud, duress, or coercion can be proved)
- Is there an Express CONDITIONS PRECEDENT and has it been satisfied?
- STATUTE OF LIMITATIONS?
1) How do you compel arbitration?
2) How you yo avoid it where you're served a "notice of intention to arbitrate"?
1) MOTION for stay of action and to compel arbitration
2) COMMENCE SPECIAL PROCEEDING for a stay of arbitration (raise the 5 defenses) within 20 DAYS from receipt of notice of intention to arbitrate
What are the ONLY circumstances where a court VACATE an arbitration award?
- Corruption, fraud, or misconduct during arbitration proceeding
- Significant partiality or bias of arbitrator
- Arbitrator exceeded scope of power (usually a losing argument, because they may do justice as they see fit)
FORMS OF ADR BESIDES ARBITRATION
1) MEDIATION—neutral, non-binding, facilitate settlement, separate talks, then combined talks. Non-binding.
2) NEUTRAL EVALUATION—neutral expert in subject matter receives condensed presentation of issues, and predicts how a court would decide. Non-binding.
3) SUMMARY JURY TRIAL—condensed version of a real trial, involving a real judge and jury. Typically limited to one day. Parties agree in advance whether result is binding.
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