An Act To Enact the Revised Uniform Arbitration Act
Maine Legislature, Session 121, LD 1218
Committee: Judiciary
Sponsors: DAVIS
Amends: 14 MRSA §755, 10 MRSA §1440, 14 MRSA §6017, 26 MRSA §937

Legislative Document 
No.121S 
H.P.892 
House of Representatives, March 6,2003 
An Act To Enact the Revised Uniform Arbitration Act 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Representative DAVIS of Falmouth. 
Printed on recyc1ed paper 
/Jl~ 
111.1Jlac~ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
PART A 
Sec. A·l. 14 MRSA c. 706, as amended, is repealed. 
Sec. A·2. 14 MRSA §755 is enacted to read: 
Uniform Comment 
PREFATORY NOTE 
The Uniform Arbitration Act (UAA), promulgated in 1955, has 
been one of the most successful Acts of the National Conference 
of Commissioners on Uniform State Laws. Forty-nine jurisdictions 
have arbitration statutes; 35 of these have adopted the UAA and 
have 
adopted substantially similar legislation. 
A primary 
purpose of the 1955 Act was 
to insure the enforceability of 
agreements to arbitrate in the face of oftentimes hostile state 
law. 
That goal has been accomplished. 
Today arbitration is a 
primary 
mechanism 
favored 
by 
courts 
and parties 
to 
resolve 
disputes in many areas of the law. This growth in arbitration 
caused the Conference to appoint a Drafting Committee to consider 
revising the Act in light of the increasing use of arbitration, 
the greater complexity of many disputes resolved by arbitration, 
and the developments of the law in this area. 
The UAA did not address many issues which ar ise in modern 
arbitration cases. The statute provided no guidance as to (1) who 
decides the arbitrability of a dispute and by what criteria; (2) 
whether a court or arbitrators may issue provisional remedies; 
(3) 
how 
a 
party can initiate an arbitration proceeding; 
(4) 
whether arbitration proceedings may be consolidated; (5) whether 
arbitrators are required to disclose facts reasonably likely to 
affect 
impartiality: 
(6) 
what 
extent 
arbitrators 
or 
an 
arbitration organization 
are 
immune 
from 
civil 
actions: 
(7) 
whether 
arbitrators 
or 
representatives 
of 
arbitration 
organizations may be required to testify in another proceeding; 
(8) whether arbitrators have the discretion to order discovery, 
issue protective orders, decide motions for summary dispositions, 
hold prehearing conferences and otherwise manage the arbitration 
process; (9) when a court may enforce a preaward ruling by an 
arbitrator; 
(10) 
what 
remedies 
an 
arbitrator 
may 
award, 
especially in regard to attorney's fees, 
punitive damages or 
other exemplary relief; (11) when a court can award attorney's 
fees and costs to arbitrators and arbitration organizations: (12) 
when a court can award attorney's fees and costs to a prevailing 
party in an appeal of an arbitrator'S award; 
and 
(13) 
wQich 
sections of the UAA would not be waivab1e, an important matter to 
insure fundamental fairness to the parties will be preserved, 
particularly 
in 
those 
instances 
where 
one 
party 
may 
have 
significantly less bargaining power than another; and (14) the 
use 
of 
electronic 
information 
and 
other 
modern 
means 
of 
technology 
in 
the 
arbitration 
process. 
The 
Revised 
Uniform 
Arbitration Act (RUAA) examines all of these issues and provides 
state legislatures with a 
more up-to-date statute to resolve 
disputes through arbitration. 
There are a number of principles that the Drafting Committee 
agreed upon at the outset of its consideration of a revision to 
the UAA. 
First, arbitration is a 
consensual process in which 
autonomy of the parties who enter into arbitration agreements 
should 
be 
given 
primary 
consideration, 
so 
long 
as 
their 
agreements 
conform 
to 
notions 
of 
fundamental 
fairness. 
This 
approach provides parties with the opportunity in most instances 
to shape the arbitration process to their own particular needs. 
In most instances the RUAA provides a default mechanism if the 
parties do not have a specific agreement on a particular issue. 
Second, the underlying reason many parties choose arbitration is 
the relative speed, lower cost, 
and greater efficiency of the 
process. 
The law should take these factors, where applicable, 
into account. 
For example, 
Section 10 allows consolidation of 
issues involving multiple parties. Such a provision can be of 
special 
importance 
in 
adhesion 
situations 
where 
there 
are 
numerous persons with essentially the same claims against a party 
to the arbitration agreement. 
Finally, 
in most cases parties 
intend the decisions of arbitrators to be final with minimal 
court involvement unless there is clear unfairness or a denial of 
justice. This contractual nature of arbitration means that the 
provision to vacate awards in Section 23 is limited. This is so 
even where an arbitrator may 
award attorney's fees, 
punitive 
damages or other exemplary relief under Section 21. Section 14 
insulates arbitrators from unwarranted litigation to insure their 
independence by providing them with immunity. 
Other new provisions are intended to reflect developments in 
arbitration law and to insure that the process is a fair one. 
Section 12 requires arbitrators to make important disclosures to 
the 
parties. 
Section 
allows 
courts 
to 
grant 
provisional 
remedies in certain circumstances to protect the integrity of the 
arbitration 
process. 
Section 
includes 
limited 
rights 
to 
discovery 
while 
recognizing 
the 
importance 
of 
expeditious 
arbitration proceedings. 
In light of a 
number of decisions by the United States 
Supreme Court concerning the Federal Arbitration Act (FAA), any 
revision of the 
UAA 
must 
take into account the doctrine of 
preemption. The rule of preemption, whereby FAA standards and the 
emphatically pro-arbitration perspective 
of 
the 
FAA 
control, 
applies in both the federal courts and the state courts. To date, 
the 
preemption-related 
opinions 
of 
the 
Supreme 
Court 
have 
centered in large part on the two key issues that arise at the 
front 
end 
of 
the 
arbitration process 
enforcement 
of 
the 
agreement to arbitrate and issues of substantive arbitrability. 
Prima Paint Corp. 
v. 
Flood 
& Conklin Mfg. 
Co., 
U.S. 
(1967); Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 
U.S. 
(1983); Southland Corp. v. Keating, 465 U.S. 
(1984); 
Perry v. Thomas, 482 U. S. 483 (1987); Allied-Bruce Terminix Cos. 
v. Dobson, 
U.S. 265 (1995); Doctor's Assocs. v. Cassarotto, 
U.S. 681 (1996). That body of case law establishes that state 
law of any ilk, including adaptations of the RUAA, 
mooting or 
limiting contractual agreements to arbitrate must yield to the 
pro-arbi tration public policy voiced in Sections 2, 3, and 4 of 
the FAA. 
The other issues to which the FAA speaks definitively lie at 
the 
back 
end of 
the arbitration process. 
The 
standards 
and 
procedure 
for 
vacatur, 
confirmation 
and 
modification 
of 
arbitration awards are the subject of Sections 9, 10, 11, and 12 
of 
the 
FAA. 
In 
contrast 
to 
the 
"front 
end" 
issues 
of 
enforceability 
and 
substantive 
arbitrability, 
there 
is 
no 
definitive Supreme Court case 
law speaking to the preemptive 
effect, if any, 
of the 
FAA 
with regard to these "back 
end" 
issues. This dimension of FAA preemption of state arbitration law 
is further complicated by the strong majority view among the 
United States Circuit Courts of Appeals that the Section 10(a) 
standards are not the exclusive grounds for vacatur. 
Nevertheless, the Supreme Court's unequivocal stand to date 
as to the preemptive effect of the FAA provides strong reason to 
believe that a similar result will obtain with regard to Section 
(a) grounds for vacatur. If it does, and if the Supreme Court 
eventually determines that the Section 10 (a) standards are the 
sole grounds for vacatur of commercial arbitration awards, 
FAA 
preemption of conflicting state law with regard to the "back end" 
issues of vacatur (and confirmation and modification) would be 
certain. If the Court takes the opposite tack and holds that the 
Section 10(a) grounds are not the exclusive criteria for vacatur, 
the preemptive effect of Section 10(a) 
would most likely be 
limited to the rule that state arbitration acts cannot eliminate, 
limit or modify any of the four grounds of party and arbitrator 
misconduct set out in Section 10(a). 
Any definitive 
federal 
"common law," pertaining to the nonstatutory grounds for vacatur 
other than those set out in Section 10 (a), articulated by the 
Supreme Court or established as 
a clear majority rule by the 
Uni ted States Courts of Appeals, likely would preempt contrary 
state law. A holding by the Supreme Court that the Section 10(a) 
grounds are not exclusive would also free the States to codify 
other grounds for vacatur beyond those set out in Section lO(a). 
These various, 
currently nonstatutory grounds for vacatur are 
discussed at length in the Section C to the Comment to Section 23. 
An important caveat to the general rule of FAA preemption is 
found in Volt Information Sciences, Inc. v. Stanford University, 
U.S. 
(1989) and Mastrobuono v. Shearson Lehman Hutton, 
Inc., 514 U.S. 
(1995). The focus in these cases is on the 
effect of FAA preemption on choice-of-law provisions routinely 
included in commercial contracts. Volt and Mastrobuono establish 
that a clearly expressed contractual agreement by the parties to 
an arbitration contract to conduct their arbitration under state 
law rules effectively trumps the preemptive effect of the FAA. If 
the 
parties 
elect 
to 
govern 
their 
contractual 
arbitration 
mechanism by the law of a particular State and thereby limit the 
issues that they will arbitrate or the procedures under which the 
arbitration will be conducted, their bargain will be honored -
as 
long as the state law principles invoked by the choice-of-law 
provision do not conflict with the FAA' s 
prime directive that 
agreements 
to arbitrate be enforced. 
See, e.g., 
ASW Allstate 
Painting & Constr. Co. v. Lexington Ins. Co., 188 F. 3d 307 (5th 
Cir. 1999); Russ Berrie & Co. v. Gantt, 988 S.W.2d 713 (Tex. Ct. 
App. 
1999). It 1S in these situations that the RUAA will have 
most impact. Section 4 (a) of the RUAA also explicitly provides 
that the parties to an arbitration agreement may waive or vary 
the terms of the Act to the extent otherwise permitted by law. 
Thus, when parties choose to contractually specify the procedures 
to 
be 
followed 
under 
their 
arbitration 
agreement, 
the 
RUAA 
contemplates that the contractually-established procedures will 
control over contrary state law, except with regard to issues 
designated as "nonwaivable" in Section 4(b) and (c) of the RUAA. 
The contractual election to proceed under state law instead 
of the FAA will be honored presuming that the state law is not 
antithetical to the pro-arbitration public policy of the FAA. 
Southland and Terminix leave no doubt that anti-arbitration state 
law provisions will be struck 
down because preempted by 
the 
federal arbitration statute. 
Besides arbitration contracts where the parties choose to be 
governed by state law, there are other areas of arbitration law 
where the 
FAA 
does not preempt state law, 
in the absence of 
definitive federal law set out in the FAA or determined by the 
federal 
courts. 
First, 
the 
Supreme 
Court has 
made 
clear its 
belief that ascertaining when a particular contractual agreement 
to arbitrate is enforceable is a matter to be decided under the 
general 
contract 
law 
principles 
of 
each 
State. 
The 
sole 
limitation on state law in that regard is the Court' s assertion 
that 
the 
enforceability 
of 
arbitration 
agreements 
must 
be 
determined by the 
same 
standards 
as 
are used for all other 
contracts. Terminix, 513 U.S. at 281 (1995) 
(quoting Volt, 489 
U. S. at 474 
(1989» 
and quoted in Cassarotto, 
U. S. 
681, 
(1996); 
and Cassarotto, 
U.S. 
at 
(quoting Scherk v. 
Alberto-Culver 
Co., 
U.S. 
506, 
(1974». 
Arbitration 
agreements may not be invalidated under state laws applicable 
only to arbitration provisions. Id. The FAA will preempt state 
law that does not place arbitration agreements on an "equal 
footing" with other contracts. 
During 
the 
course 
of 
its 
deliberations 
the 
Drafting 
Commi ttee 
considered 
at 
length 
another 
issue 
with 
strong 
preemption undertones -
the question of whether the RUAA should 
explicitly sanction contractual provisions for "opt-in" review of 
challenged arbitration awards beyond that presently contemplated 
by 
the 
FAA 
and 
current 
state 
arbitration 
acts. 
"Opt-in" 
provisions of 
two types are 1n limited use today. 
The first 
variant permits a party who 
1S dissatisfied with the arbitral 
result to petition directly to 
a 
designated state court 
and 
stipulates that the court may vacate challenged awards, typically 
for 
errors 
of 
law 
or 
fact. 
The 
second 
type 
of 
"opt-in" 
contractual provision establishes an appellate arbitral mechanism 
to which challenged arbitration awards 
can 
be 
submitted for 
review, again most typically for errors of law or fact. 
As 
explained in detail in Section B of the 
Comment 
to 
Section 23, there were a number of reasons that resulted in the 
decision not to include statutory sanction of the "opt-in" device 
for 
expanded 
judicial 
review 
in 
the 
RUAA: 
(1) 
the 
current 
uncertainty as to the legality of a state statutory sanction of 
the 
"opt-in" device, 
(2) 
the 
"disconnect" 
between 
the Act's 
purpose of fostering the use of arbitration as 
a 
final 
and 
binding alternative to traditional litigation in a court of law, 
and (3) the inclusion of a statutory provision that would permit 
the 
parties 
to 
contractually 
render 
arbitration 
decidedly 
non-final and non-binding. Simply stated, the potential gain to 
be realized by codifying a right to opt-into expanded judicial 
review that has not yet been definitively confirmed to exist does 
not outweigh the potential threat that adoption of an opt-in 
statutory provision would create for the integrity and viability 
of the RUAA as a template for state arbitration acts. 
Unlike the "opt-in" judicial review mechanism, 
there are 
few, 
if any, 
legal concerns raised by statutory sanction of 
"opt-in" provisions for appellate arbitral review. Nevertheless, 
as explained in the Section B of the Comments to Section 23, 
because 
the 
current, 
contract-based 
view 
of 
arbitration 
establishes 
that 
the parties 
are 
free 
to 
design 
the 
inner 
workings of their arbitration procedures in any manner they see 
fit, the Drafting Committee determined that codification of that 
right in the RUAA would add nothing of substance to the existing 
law of arbitration. 
The decision not to statutorily sanction either form of the 
"opt-in" 
device 
in the 
RUAA 
leaves 
the 
issue of 
the 
legal 
propriety of this means for securing review of awards to the 
developing case law under the FAA and state arbitration statutes. 
Parties 
remain 
free, 
within 
the 
constraints 
imposed 
by 
the 
existing and developing law, to agree to contractual provisions 
for arbitral or judicial review of challenged awards. 
It is likely that matters not addressed in the FAA are also 
open to regulation by the States. State law provisions regulating 
purely procedural dimensions of the arbitration process (e. g. , 
discovery 
[RUAA 
Section 
17], 
consolidation 
of 
claims 
[RUAA 
Section 10], and arbitrator immunity 
[RUAA Section 14]) likely 
will not be subject to preemption. Less certain is the effect of 
FAA 
preemption 
with 
regard 
to 
substantive 
issues 
like 
the 
authority of arbitrators to award punitive damages (RUAA Section 
21) 
and the standards for arbitrator disclosure of potential 
conflicts of interest (RUAA Section 12) that have a significant 
impact on the integrity and/or the adequacy of the arbitration 
process. These "borderline" issues are not purely procedural 1n 
nature but unlike the "front end" and "back end" issues they do 
not 
go 
to 
the 
essence 
of 
the 
agreement 
to 
arbitrate 
or 
effectuation 
of 
the 
arbitral 
result. 
Although 
there 
1S 
no 
concrete guidance 
in the 
case 
law, 
preemption of state 
law 
dealing with such matters seems unlikely as long as it cannot be 
characterized as anti-arbitration or as intended to limit the 
enforceability or viability of agreements to arbitrate. 
The subject of international arbitration is not specifically 
addressed in the 
RUAA. 
Twelve States have passed arbitration 
statutes directed to international arbitration. Seven States have 
based their statutes on the Model Arbitration Law proposed in 
1985 by the United Nations Commission on International Trade Law 
(UNCITRAL). 
Other 
States 
have 
approached 
international 
arbitration in a variety of ways, such as adopting parts of the 
UNCITRAL Model Law together with provisions taken directly from 
the 1958 United Nations Convention on Recognition and Enforcement 
of Foreign Arbitral Awards (commonly referred to as the New York 
Convention) or by devising their own international arbitration 
provisions. 
Any 
provisions 
of 
these 
state international 
arbitration 
statutes that are inconsistent with the New York Convention, to 
which the United States adhered in 1970 (terms of the New York 
Convention can be found at 9 U.S.C. § 201), or with the federal 
legislation in Chapter 2 of Title 9 of the United States Code are 
preempted. Chapter 2 creates federal-question jurisdiction in the 
federal district courts for any case "falling under the 
[New 
York] Convention" and permits removal of any such case from a 
state court to the federal court "at any time prior to trial." 9 
U. S. C. §§ 203, 205. The statute covers any commercial agreement 
to arbitrate 
and 
the resultant arbitration award unless 
the 
matter involves only American citizens and has 
no 
reasonable 
relationship to any foreign country and the courts have broadly 
applied 
the 
statute. 
Therefore, 
it is 
unlikely 
that 
state 
arbitration law will have major application to an international 
case. There are two instances where state arbitration law might 
apply 
in 
the 
international 
context: 
(1) 
where 
the 
parties 
designate 
a 
specific 
state 
arbitration 
law 
to 
govern 
the 
international 
arbitration 
and 
(2) 
where 
all parties 
to 
an 
arbitration proceeding 
involving 
an 
international 
transaction 
decide to proceed on a matter in state court and do not exercise 
their rights of removal under Chapter 
of Title 
and the 
relevant provision of state arbitration law is not preempted by 
federal arbitration law or the New York Convention. 
In these 
relatively rare cases, the state courts will refer to the RUAA 
unless the State has enacted a special international arbitration 
law. 
Because few international cases are likely to be dealt with 
in state courts and because of the diversity of state law already 
enacted for international cases, the Drafting Committee decided 
not to address international arbitration as a specific subject in 
the 
revision 
of 
the 
UAA; 
however, 
the 
Committee 
utilized 
provisions of the UNCITRAL Model Law, the New York Convention, 
and the 1996 English Arbitration Act as sources of statutory 
language for the RUAA. 
The members of the Drafting Committee to revise the Uniform 
Arbitration Act wish to acknowledge our deep indebtedness and 
appreciation to Professor Stephen Hayford and Professor Thomas 
Stipanowich who devoted extensive amounts of time by providing 
invaluable advice throughout the entire drafting process. 
CHAPTER 755 
REVISED UNIFORM ARBITRATION ACT 
§S701. Definitions 
As 
used 
in this 
chapter, 
unless 
the 
context 
otherwise 
indicates, the following terms have the following meanings. 
1. 
Arbitration organization. 
"Arbitration organization" 
means an association, agency, board, commission or other entity 
that 
is 
neutral 
and 
initiates, 
sponsors 
or 
administers 
an 
arbitration proceeding or is involved in the appointment of an 
arbitrator. 
2. 
Arbitrator. 
"Arbitrator" means an individual appointed 
to render an award, alone or with others, in a controversy that 
is subject to an agreement to arbitrate. 
3. 
Court. 
"Court" means a court of competent jurisdiction 
in this State. 
4. 
Knowledge. 
"Knowledge" means actual knowledge. 
5. 
Person. 
"Person" 
means 
a 
governmental 
subdivision, 
agency or instrumentality, an individual, corporation, business 
trust, estate, 
trust, partnership, 
limited liability company, 
association, joint venture, government, public corporation or any 
other legal or commercial entity. 
6. 
Record. 
"Record" means information that is inscribed on 
a tangible medium or that is stored in an electronic or other 
medium and is retrievable in perceivable form. 
Uniform Comment 
1. The term "arbitration organization" is similar to the one 
used in section 74 
of the 
1996 
English Arbitration Act 
and 
describes well the functions of agencies such as the American 
Arbitration 
Association 
(AAA), 
the 
CPR, 
JAMS, 
the 
National 
Arbitration Forum, 
NASD 
Regulation, 
Inc., 
the 
American 
Stock 
Exchange, 
the New 
York 
Stock Exchange, 
and the International 
Chamber 
of 
Commerce. 
Arbitration 
organizations 
under 
their 
specific administrative rules oversee and administer all aspects 
of 
the arbitration process. 
The 
important hallmarks 
of 
such 
agencies are that they are neutral and unbiased. 
See, e.g., 
Engalla v. Permanente Med. Group, Inc., 15 Cal. 4th 951, 938 P.2d 
903, 
Cal. 
Rptr. 
2d 
(1997) 
(stating that defendants' 
self-administered 
arbitration 
program 
between 
insurer 
and 
customers that did not impartially administer arbitration system 
and made 
representations 
about timeliness of the proceedings 
contrary to what defendant knew would occur was improper). The 
term "arbitration organization" is used in Section 12 concerning 
arbi trator 
disclosure 
and 
Section 
concerning 
arbitrator 
immunity. 
2. 
In 
defining 
"arbitrator" 
in Section 1(2), 
the 
term 
"individual" 
rather 
than 
"person" 
is 
used 
because 
business 
entities or organizations do not function as "arbitrators." 
3. The definition of "court" is presently found in Section 
of the UAA. The court must have appropriate subject matter and 
personal jurisdiction. Different States determine which court in 
its system has jurisdiction over arbitration matters in the first 
instance. 
Most 
jurisdiction. 
give 
authority 
to 
the 
court 
of 
general 
4. 
The 
term 
"knowledge" is used in Section 
regarding 
notice 
under 
the 
RUAA 
and 
is 
referenced 
in 
Section 
l2(a) 
concerning disclosure. It is based on the definition used in 
Article 1-201 of the Uniform Commercial Code. "Actual knowledge" 
as 
used in this Act is not intended to include 
imputed or 
constructive knowledge. 
5. Section 1(6) is based on the definition of "record" in 
Sec. 5-102 (a) (14) of the Uniform Commercial Code and in proposed 
revised Article 2 of the Uniform Commercial Code and is intended 
to 
carry 
forward 
established 
policy 
of 
the 
Conference 
to 
accommodate 
the 
use 
of 
electronic 
evidence 
in business 
and 
governmental transactions. It is not intended to mean that a 
document must be filed in a governmental office nor is it meant 
to 
imply that the 
term 
"written" 
or like phrases 
in other 
statutes of an enacting State may not be given equally broad 
interpretation as the term "record." 
§8702. 
Notice 
1. 
Notice b.,y taking action. 
Except as otherwise provided 
in this chapter, 
a person gives notice to another person by 
taking action that is reasonably necessary to inform the other 
person in ordinary course, 
whether 
or 
not 
the other person 
acquires knowledge of the notice. 
2. 
Knowledge or receipt of notice. 
A person has notice if 
the person has knowledge of the notice or has received notice. 
3. 
Attention or delivery. 
A person receives notice when it 
comes to the person's attention or the notice is delivered at the 
person's place of residence or place of business, or at another 
location held out by the person as a place of delivery of such 
communications. 
Uniform Comment 
1. The conditions of giving and receiving notice are based 
on 
terminology 
used 
in 
Article 
1-201 (25) 
of 
the 
Uniform 
Commercial Code. Section 2 spells out standards for when notice 
is given and received rather than requiring any particular means 
of notice. This allows parties to use systems of notice that 
become technologically feasible and acceptable, such as fax or 
electronic mail. 
2. The concept of giving, having, or receiving notice is in 
Section 15(b) 
and 
(c) 
concerning parties giving notice of 
a 
request for summary disposition and arbitrators giving notice of 
an arbitration hearing; Section 19(a) regarding an arbitrator or 
an arbitration organization giving notice of an award and Section 
19(b) 
concerning a 
party notifying an arbitrator of untimely 
delivery of an award; Section 20(b) concerning a party's notice 
of requesting a change in the award by arbitrators; Section 22 
concerning a party applying to a court to confirm an award after 
receiving notice of it; Section 23(b) concerning a party filing a 
motion to vacate an award; and Section 24 (a) concerning a party 
applying to modify or correct an award after receiving notice of 
it. 
3. "Notice" is also used in Section 9 regarding initiation 
of an arbitration proceeding; Section 9(a) requires that unless 
the parties otherwise agree as per Section 4, notice must be 
given either by certified or registered, return receipt requested 
and 
obtained, 
or 
by 
service 
as 
authorized 
by 
law 
for 
the 
initiation of a civil action. Because of the language in Section 
"except as otherwise provided by this [Act]," the manner of 
2 
notice provided in Section 9 (a) takes precedence as to notice of 
initiation of an arbitration proceeding. 
§8703. 
When chapter applies 
1. 
Agreement to arbitrate on or after effective date. 
This 
chapter governs 
an 
agreement 
to arbitrate 
made 
on 
or after 
January 1, 2004. 
2. 
Agreement to arbitrate before effective date. 
This 
chapter governs an agreement to arbitrate made before January 1, 
2004 if all the parties to the agreement or to the arbitration 
proceeding so agree in a record. 
3. 
All agreements to arbitrate. 
On or after July 1, 2004, 
this chapter governs an agreement to arbitrate whenever made. 
Uniform Comment 
1. Section 3 is based upon the effective-date provisions in 
the 
Revised Uniform Partnership Act 
(Section 
1206) 
and 
1996 
Amendments constituting the Uniform Limited Liability Partnership 
Act of 1994 (Section 1210). Section 3(b) allows parties who have 
entered into arbitration agreements under the UAA the option to 
elect coverage under the RUAA if they do so in a record. Section 
3(c) establishes a certain date when all arbitration agreements, 
whether entered into before or after the effective date of the 
RUAA, will be governed by the RUAA rather than the UAA. 
2. 
Section 
of 
the 
UAA 
provided 
that 
the 
law 
was 
applicable only to agreements entered into after the effective 
date of the Act. The Drafting Committee rejected this approach in 
the RUAA. 
If it were followed, 
such a section would cause two 
sets of rules to develop for arbitration agreements under state 
arbitration law: one for agreements under the UAA 
and one for 
agreements 
under the 
RUAA. 
This is especially troublesome 
in 
si tuations where parties have a continuing relationship that is 
governed by a contract with an arbitration clause. There would be 
no mechanism, such as Section 3(b) for these parties to opt into 
the provisions 
of 
the 
RUAA 
without 
rescinding their initial 
agreement. 
Section 
3(c) 
also 
sets 
a 
time 
certain 
when 
all 
arbitration agreements will be governed by the RUAA. 
The time 
between when parties may opt into coverage under the RUAA 
and 
when parties' agreements must be governed by the RUAA will give 
parties a 
reasonable amount of time in which to learn of and 
adapt their arbitration agreements to the changes made by the 
RUAA. 
3. Section 3 operates in conj unction with Section 3 L 
the 
effective date of the Act; Section 32, that repeals the UAA or 
present arbitration statute in a State as of the delayed date 
which is the same delayed date as in Section 3 (c), and Section 
33, 
a 
savings 
clause 
that 
preserves 
actions 
or 
proceedings 
accruing before the RUAA takes effect and provides that, subject 
to 
Section 
3, 
an 
arbitration 
agreement 
made 
prior 
to 
the 
effective date of the RUAA is governed by the UAA. 
The approach taken in Sections 3, 
31, 
32, 
and 33 
may cause a 
problem in some States that do not allow one statute, the RUAA, 
to amend another statute, the UAA. 
Some States may have to amend 
its current 
UAA 
so 
that it will 
not 
apply 
to 
arbitration 
agreements made after the effective date of the RUAA but before 
the delayed date of repeal of the UAA. Another possibility that a 
State with such a 
problem may consider is to incorporate the 
repealed UAA into the RUAA. 
4. The following is an illustration of how Sections 3, 31, 
32, and 33 operate. Assume that a state legislature passes the 
RUAA and, in accordance with Section 31, makes the RUAA effective 
on January 1, 2005, and, in accordance with Sections 3(c) and 32, 
chooses a date of January L 
2007, [referred to as the "delayed 
date" 
in 
Sections 
3(c) 
and 
32] 
by 
which 
all 
arbitration 
agreements in the State must conform to the RUAA and on which the 
UAA will be repealed. Under Sections 3 (a) and 31 any agreements 
entered into after January 1, 2005, would be covered by the RUAA. 
Under Sections 3(b) 
and 33 
for the period between January L 
2005, and December 31, 2006, the UAA would apply to arbitration 
agreements 
entered into before 
January 
1, 
2005, 
unless all 
parties to the arbitration agreement or proceedings agree in a 
record that the RUAA would govern. Under Sections 3(c) and 32 on 
January 
1, 
2007, 
the 
RUAA 
would 
apply 
to 
all 
arbitration 
agreements, 
i.e., 
those 
entered into 
both before 
and 
after 
January 1, 2005, the effective date of the RUAA. 
5. 
By adopting Section 3 (c) 
a legislature will express a 
specific intent that the RUAA, on the date which the legislature 
selects, 
will 
have retroactive application as 
to arbitration 
agreements entered into prior to 
the effective date 
of 
the 
legislation and where the parties have not opted into coverage 
under the RUAA during the interim period under Section 3(a)(2). 
Courts generally require legislatures to express such an intent 
as 
to 
retroactive 
application. 
Millenium 
Solutions, 
Inc. 
v. 
Davis, 258 Neb. 293, 603 N.W.2d 406 (1999) (holding that because 
legislature did not clearly express an intention that Uniform 
Arbitration Act was to be applied retroactively, it only applies 
prospectively); see also Koch v. S.E.C., 177 F.3d 784 (9th Cir. 
1999); Phillips v. Curiale, 128 N.J. 608, 608 A.2d 895 (1992). 
Retroactive application of statutes to preexisting contracts is 
acceptable when the legislation has a legitimate purpose and the 
measures are reasonable and appropriate to that end. 2 Sutherland 
Stat. 
Const. 
§ 
41.07 
(5th ed. 
1993). 
The 
need 
for 
uniform 
application of arbitration laws and to avoid two sets of rules 
for arbitration agreements that are of a long-term duration are 
legitimate 
rationales 
for 
retroactive 
application, 
especially 
because parties will be given a time period in which to determine 
whether to opt for coverage under the UAA or the RUAA and during 
which to adjust any provisions in their arbitration agreements 
for eventual application of the RUAA. These same rationales were 
used for similar provisions in the Revised Uniform Partnership 
Act and the Uniform Limited Liability Partnership Act. 
§8704. 
Effect of agreement to arbitrate; nonwaivable provisions 
1. 
Parties mAr waive or vary effect of chapter. 
Except as 
otherwise 
provided 
in 
subsections 
and 
3, 
a 
party 
to 
an 
agreement to arbitrate or to an arbitration proceeding may waive 
or the parties may vary the effect of the reguirements of this 
chapter to the extent permitted by law. 
2. 
Actions 
prohibited 
before 
controversy. 
Before 
a 
controversy arises that is subject to an agreement to arbitrate, 
a party to the agreement may not: 
A. 
Waive or agree to vary the effect of the reguirements of 
section 8705, subsection 1; 8706, subsection 1; 8708; 8717 , 
subsection 1 or 2; 8726; or 8728; 
B. 
Agree to unreasonably restrict the right under section 
8709 
to 
notice 
of 
the 
initiation 
of 
an 
arbitration 
proceeding; 
C. 
Agree to unreasonably restrict the right under section 
8712 to disclosure of any facts by a neutral arbitrator; or 
D. 
Waive the right under section 8716 of a party to an 
agreement to arbitrate to be represented by a lawyer at any 
proceeding or hearing under this chapter, but an employer 
and 
a 
labor 
organization 
may 
waive 
the 
right 
to 
representation by a lawyer in a labor arbitration. 
3. 
Regyirements that may not be waived or varied. 
A party 
to an agreement to arbitrate or arbitration proceeding may not 
waive, or the parties may not vary the effect of the reguirements 
of this section or section 8703, subsection 1 or 3; 8707; 8714; 
8718; 8720, subsection 4 or 5; 8722; 8723; 8724; 8725, subsection 
or 2; 8729; 8730; or 8731. 
'")") 
Uniform Connent 
1. 
Section 
is 
similar 
to 
provisions 
in 
the 
Uniform 
Partnership Act (Section 103) and in the proposed Revised Uniform 
Limited Partnership Act (Section 101B). The intent of Section 4 
is to indicate that, although the RUAA is primarily a default 
statute 
and 
the 
parties' 
autonomy 
as 
expressed 
in 
their 
agreements concerning an arbitration normally should control the 
arbitration, there are provisions that parties cannot waive prior 
to a dispute arising under an arbitration agreement or cannot 
waive at all. 
2. 
Section 4 (a) 
embodies the notion of party autonomy in 
shaping their arbitration agreement or arbitration process. It 
should be noted that, subject to Section 4 (b) 
and (c) 
and in 
accordance with Comment 
to Section 6, 
although the parties' 
arbitration agreement must be in a record, they subsequently may 
vary that agreement orally, for instance, during the arbitration 
proceeding. 
3. The phrase "to the extent permitted by law" is included 
in Section 4 (a) to inform the parties that they cannot vary the 
terms of an arbitration agreement from the RUAA if the result 
would violate applicable law. This situation occurs most often 
when a party includes unconscionable provisions in an arbitration 
agreement. 
See 
Comment 
to 
Section 
6. 
The 
law 
in 
some 
circumstances 
may 
disallow 
parties 
from 
limiting 
certain 
remedies, such as attorney's fees and punitive or other exemplary 
Page l3-LR0468(1) 
damages. For example, although parties might limit remedies, such 
as recovery of attorney's fees or punitive damages in Section 21, 
a 
court might 
deem 
such 
a 
limitation inapplicable where 
an 
arbitration involves statutory rights that would require these 
remedies. See Comment 2 to Section 21. 
4. Section 4(b) is a listing of those provisions that cannot 
be waived in a predispute context. After a dispute subject to 
arbitration arises, 
the parties should have more 
autonomy to 
agree to provisions different from those required under the RUAA; 
in that circumstance the sections noted in 4(b) are waivable. 
Special mention should be made of the following sections: 
a. Section 9 allows the parties to shape what goes into a notice 
to initiate an arbitration proceeding as well as the means of 
gi ving the notice but Section 4 (b) (2) 
insures that reasonable 
notice must be given. 
b. Section 4(b)(3) recognizes that many parties are governed by 
disclosure requirements through an arbitration organization or a 
professional association. Such requirements would be controlling 
instead of those in Section 12 so long as they are reasonable in 
what they require a neutral arbitrator to disclose. Also, parties 
can waive the requirement that non-neutral arbitrators appointed 
by the parties make any disclosures under Section 12. See, e.g., 
AAA, 
Commercial Disp. 
Resolution Pro. 
R-12(b), 
(disclosure 
requirements do not apply to party-appointed arbitrator, unless 
parties agree to the contrary). 
c. Section 16, which provides that a party can be represented by 
an attorney and which cannot be waived prior to the initiation of 
an arbitration proceeding under Section 9, is an important right, 
especially in the context of an arbitration agreement between 
parties of unequal bargaining power. However, in labor-management 
arbitration many parties agree to expedited provisions where, 
prior to any hearing on a particular matter, they knowingly waive 
the 
right 
to 
have 
attorneys 
present 
their 
cases 
(and 
also 
prohibit transcripts 
and briefs) 
in order to 
have 
a 
quick, 
informal, and inexpensive arbitration mechanism. Because of this 
longstanding practice and ·because the parties are of relatively 
equal bargaining power, Section 4(b) (4) makes an exception for 
labor-management arbitration. 
d. Although prior to an arbitration dispute, parties should not 
be able to waive Section 26 concerning jurisdiction and Section 
regarding appeals because these provisions deal with courts' 
authority to hear cases, after the dispute arises if parties wish 
to limit the jurisdictional provisions of Section 26 
or the 
provisions regarding appeals in Section 28 to decide that there 
will be no appeal from lower court rulings, they should be free 
to do so. 
5. Section 4(c) includes those provisions such as those that 
involve the judicial process, the waivability of the RUAA, 
the 
effective 
date 
of 
the 
RUAA, 
or 
the 
inherent 
rights 
of 
an 
arbitrator. The provisions in Section 4(c) should not be within 
the control of the parties either before or after the arbitration 
dispute arises. 
a. Section 7 concerns the court's authority either to compel or 
stay arbitration proceedings. 
Parties 
should not 
be 
able 
to 
interfere with this power of the court to initiate or deny the 
right to arbitrate. 
b. Section 14 provides arbitrators and arbitration organizations 
with 
immunity 
for 
acting 
in 
their 
respective 
capacities. 
Similarly, 
arbitrators 
and 
representatives 
of 
arbitration 
organizations are protected from being required to testify in 
certain instances and if arbitrators or arbitration organizations 
are 
the 
subject of 
unwarranted litigation, 
they 
can 
recover 
attorney fees. This section is intended to protect the integrity 
of the arbitration process and is not waivable by the parties. 
c. Likewise, Section 18, dealing with 
preaward rulings, is an inherent right; 
be 
unable 
to 
insure 
a 
fair hearing 
mechanism to carry out preaward orders. 
judicial enforcement of 
otherwise parties would 
and 
there 
would 
be 
no 
d. Subsections (a), (b), and (c) of Section 20 give the parties 
the right to apply to the arbitrators to correct or clarify an 
award; 
this right is waivable. 
But the right of 
a 
court in 
Section 20(d) to order an arbitrator to correct or clarify an 
award and the applicability of Sections 22, 23, and 24 to Section 
as provided in Section 20(e) are not waivable. 
e. 
The 
judicial 
confirmation, 
vacatur, 
and 
modification 
provisions of Sections 22, 23, and 24 are not waivable. Special 
note should be made in regard to Section 23 concerning vacatur. 
Parties cannot waive or vary the statutory grounds for vacatur 
such as that a court can vacate an arbitration award procured by 
fraud or corruption. However, parties can add appropriate grounds 
that are not in the statute. 
For instance, 
as described 1n 
Comment 
C to Section 
23, 
courts 
have 
developed nonstatutory 
grounds of manifest disregard of the law and violation of public 
policy that will void an arbitration award. Parties could include 
such 
standards 
as 
grounds 
for 
vacatur 
in their 
arbitration 
agreement. Similarly, as discussed in Comment B to Section 23, at 
this time there is a split of authority whether courts will 
recognize the validity of arbitration agreements by parties to 
"opt in" to judicial review of an award for errors of fact or 
law. See, e.g., Moncarsh v. Heiley, & BIas, 3 Cal. 4th 1, 2, 832 
P. 2d 899, 912 ("[I]n the absence of some limiting clause in the 
arbitration 
agreement, 
the 
merits 
of 
the 
award, 
either 
on 
questions of fact or of law, 
may not be reviewed except as 
provided in the statute.") 
(1992); Tretina Printing, 
Inc. 
v. 
Fitzpatrick & Associates, Inc., 135 N. J. 349, 357 -58, 640 A. 2d. 
(1994) 
(" [T]he parties are free to expand the 
scope of 
judicial 
review 
by 
providing 
for 
such 
expansion 
in 
their 
contract"). 
By including Section 23 
as one of the referenced 
sections in Section 4 (c), the Drafting Committee did not intend 
that an opt-in clause would "vary a requirement" of Section 23. 
If authoritative 
case 
law 
recognizes 
an opt-in standard 
of 
review, Section 4(c) is not intended to prohibit such a clause in 
an arbitration agreement. 
f. Section 25(a) and (b) provides the mechanisms for a court to 
enter 
judgment and to award costs. 
Because these powers are 
wi thin the province of a court they are not waivable. Section 
25(c) 
concerns 
remedies 
of 
attorney's 
fees 
and 
litigation 
expenses that, similar to other remedies in Section 21, parties 
can determine by agreement. 
g. 
Parties cannot vary the nonwaivability provision of this 
section, 
the uniformity of interpretation in Section 29, 
the 
applicability of the Electronic Signatures in Global and National 
Commerce Act of Section 30, the effective date in Section 31, the 
application of the Act in Section 3(a) 
and 
(c), 
Section 
regarding repeal of the UAA or the savings clause in Section 33. 
§8705. Application for judicial relief 
1. 
Motion 
for 
judicial 
relief. 
Except 
as 
otherwise 
provided in section 8728, 
an application for judicial relief 
under this chapter must be made by motion to the court and heard 
in the manner provided by law or rule of court for making and 
hearing motions. 
2. 
Notice of motion. 
Unless a civil action involving the 
agreement to arbitrate is pending, notice of an initial motion to 
the court 
under this chapter must 
be 
served 
in the 
manner 
provided by law for the service of a summons in a civil action. 
Otherwise, 
notice of the motion must be given in the manner 
provided by law or rule of court for serving motions in pending 
cases. 
Uniform Conment 
1. Section 5, subsections (a) and (b) are based on Section 
of the UAA. Its purpose is twofold: (1) that legal actions to 
a court involving an arbitration matter under the RUAA will be by 
motion and not by trial and (2) unless the parties otherwise 
agree, the initial motion filed with a court will be served ln 
the same manner as the initiation of a civil action. 
2. 
The 
UAA 
uses 
the 
term 
"application" 
throughout 
the 
statute. Legal actions under both the UAA and the FAA generally 
are conducted by motion practice and are not subject to the 
delays of a civil trial. This system has worked well and the 
intent of Section 5 is to retain it. However, 
in some States 
there may be different means of initiating arbitration actions, 
such as filing a petition or a complaint, instead of or along 
with a motion or an application. This section is not intended to 
alter established practice in any particular State and the terms 
"application" and "motion" have been bracketed throughout the 
RUAA for substitution by States where appropriate. 
§S706. Validity of agreement to arbitrate 
1. 
Agreement 
valid, 
enforceable 
and 
irrevocable; 
exceptions. 
An 
agreement contained in a 
record to submit to 
arbitration 
any 
existing 
or 
subsequent 
controversy 
arising 
between the parties to the agreement is valid, enforceable and 
irrevocable except upon a ground that exists at law or in equity 
for the revocation of a contract. 
2. 
Court 
determination; 
agreement 
or 
controversy. 
The 
court shall decide whether an agreement to arbitrate exists or a 
controversy is subject to an agreement to arbitrate. 
3. 
Arbitrator 
determination: 
condition 
precedent: 
contract. 
An 
arbitrator 
shall 
decide 
whether 
a 
condition 
precedent to arbitrability has 
been fulfilled and whether 
a 
contract containing a valid agreement to arbitrate is enforceable. 
4. 
Arbitration controversies pending. 
If a party to 
a 
judicial proceeding challenges the existence of or claims that a 
controversy is not subject to an agreement to arbitrate, the 
arbitration proceeding may continue pending final resolution of 
the issue by the court unless the court otherwise orders. 
Uniform Conment 
1. 
The 
language in 
arbi tration agreements is 
the s arne 
as the 1 anguage 
Section 
the sarne 
of FAA 
6(a) 
as to the 
as UAA Section 
Section 2 which 
validity of 
and almost 
states that 
arbitration 
agreements 
"shall 
be 
valid 
irrevocable, 
and 
enforceable, save upon such grounds as exist at law or in equity 
for the revocation of any contract." Because of the significant 
body of case law that has developed over the interpretation of 
this language in both the UAA and the FAA, this section, for the 
most part, is intact. 
Section 6(a) provides that any terms in the arbitration agreement 
must be in a "record." This too follows both the UAA and FAA 
requirements that arbitration agreements be in writing. However, 
a 
subsequent, 
oral 
agreement 
about 
terms 
of 
an arbitration 
contract is valid. This position is in accord with the unanimous 
holding of courts that a written contract can be modified by a 
subsequent, 
oral 
arrangement 
provided 
that 
the 
latter 
is 
supported by valid consideration. Premier Technical Sales, Inc. 
v. Digital Equip. Corp., 11 F. Supp. 2d 1156 (N.D. Cal. 1998); 
Cambridgeport Savings Bank v. Boersner, 413 Mass. 432, 597 N.E.2d 
1017 
(1992); Pe11egrene v. 
Luther, 
Pa. 
212, 
A.2d 298 
(1961); 
Pacific Dev., 
L.C. 
v. 
Orton, 
P.2d 94 
(Utah App. 
1999). Indeed it is typical in the arbitration context, for many 
parties 
to 
have 
only 
a 
short 
statement 
in their contracts 
concerning the resolution of disputes by arbitration, and perhaps 
a reference to the rules of an arbitration organization. It is 
oftentimes 
only 
after 
the 
initial 
arbitration 
agreement 
is 
written and when a dispute arises that the parties enter into 
more detailed agreements as to how their arbitration process will 
work. 
Such subsequent understandings, whether oral or written, 
are part of the arbitration agreement. 
Subsection (a), 
being the 
same 
as Section 1 
of the Uniform 
Arbitration Act 
("UAA"), 
is 
intended 
to 
include 
arbitration 
provisions 
contained 
in 
the 
bylaws 
of 
corporate 
or 
other 
associations 
as valid and enforceable arbitration agreements. 
Courts 
that 
have 
addressed 
whether 
arbitration 
provisions 
contained in the bylaws of corporate or other associations are 
enforceable under the UAA have unanimously held that they are. 
See Elbadramany v. Stanley, 490 So.2d 964, 964-65 (Fla. Dist. Ct. 
App. 1986); Wigod v. Chicago Mercantile Exchange, 490 N.E.2d 39 
(Ill. App. Ct. 1986); VanC. Argiris & Co. v. May, 398 N.E.2d 1239, 1240 
(Ill. App. Ct. 1979); Maine Cent. R. Co. v. Bangor & Aroostook R. 
Co., 395 A.2d 1107, 1119-1121 (Me. 1978). See also Keith Adams & 
Associates, Inc. v. Edwards, 
P.2d 36, 
(Wash. 
Ct. 
App. 
1970); Willard Alexander, Inc. v. Glasser, 
N. E. 2d 813, 814 
(N.Y. 1972). 
This result, that corporate bylaws are contracts between the 
corporation and its shareholders and among its shareholders, is 
consistent with 
the 
rule 
in the majority of 
jurisdictions, 
including 
Delaware, 
New 
York, 
Illinois, 
Massachusetts, 
and 
California. See ER Holdings, Inc. v. Norton Co., 
F. 
Supp. 
1094,1097 (D. Mass. 1990); Kidsco Inc. v. Dinsmore, 
A.2d 
483, 492 (Del. Ch. 1995) (citing Centaur Partners, IV v. National 
Intergroup, Inc., 582 A.2d 923,926 (Del. 1990»; Black v. Glass, 
So.2d 1359,1367 (Ala. 1983); Norris v. S. Shore Chamber of 
Commerce, 
N.E.2d 76, 
(Ill. App. Ct. 1981); Procopio v. 
Fisher, 443 N.Y.S.2d 492, 495 (N.Y. 
App. Div. 1981); Jessie v. 
Boynton, 361 N.E.2d 1267, 1273 (Mass. 1977); O'leary v. Board of 
Directors, Howard Young Medical Center, Inc., 278 N.W.2d 217, 222 
(Wis. Ct. App. 1979); Casady v. Modern Metal Spinning & Mfg. Co., 
Cal. Rptr. 790, 793 (Cal. Ct. App. 1961). See also Brenner v. 
Powers, 
N.E.2d 569, 
(Ind. Ct. App. 1992) (holding that 
the bylaws of Indiana not-for-profit corporation are generally "a 
form of contract between the corporation and its members 
and 
among the members themselves"). Moreover, a number of additional 
jurisdictions that have not specifically held corporate bylaws to 
be contracts have determined that such bylaws should be construed 
and interpreted as though they were contracts. See Unigroup, Inc. 
v. O'Rourke Storage & Transfer Co., 980 F.2d 1217, 1220 (8th Cir. 
1992) 
(applying Missouri 
law); 
Phillips v. 
National 
Trappers 
Ass'n, 
N.W.2d 
609, 
(Iowa Ct. 
App. 
1987); 
Storrs v. 
Lutheran Hosps. 
and Homes Soc. 
of Am" 
Inc., 
P.2d 24, 
(Alaska 1980); Blue Ridge Property Owners Assoc. v. Miller, 221 
S. E. 2d 163, 
(Va. 
1976); Toler v. Clark Rural Elec. Co-op. 
hQuh, 512 S.W.2d 25, 
(Ky. 1974); Schroeder v. Meridian Imp. 
Club., 221 P.2d 544, 548 (Wash. 1950). 
This result is further supported by the general rule that the 
bylaws 
of voluntary associations 
are 
a 
contract between 
the 
association and its members, and among its members. See Robinson 
v. Kansas State High School Activities Ass'n, Inc., 917 P.2d 836, 
(Kan. 1996); Loigman v. Trombadore, 550 A.2d 154, 161 (N.J. 
Super. App. Div. 1988); Hebert v. Ventetuolo, 480 A.2d 403,407 
(R.I. 1984); Maine Cent. R. Co. v. Bangor & Aroostook R. Co., 395 
A.2d 
1107, 
1119 
(Me. 
1978); 
Attoe 
v. 
Madison 
Professional 
Policemen's Ass'n, 
N.W.2d 489,492 (Wis. 
1977); Stoica v. 
International 
Alliance 
of 
Theatrical 
Stage 
Emp. 
and 
Moving 
Picture Mach. Operators of U.S. and Canada, 178 P.2d 21, 
22-23 
(Cal. Ct. App. 1947). 
2. 
Subsections (b) 
and (c) of Section 6 are intended to 
incorporate the holdings of the vast majority of state courts and 
the law that has developed under the FAA that, in the absence of 
an 
agreement 
to 
the 
contrary, 
issues 
of 
substantive 
arbitrability, 
i.e., 
whether 
a 
dispute is encompassed 
by 
an 
agreement to arbitrate, are for a court to decide and issues of 
procedural arbitrability, i.e., 
whether prerequisites 
such 
as 
time 
limits, 
notice, 
laches, 
estoppel, 
and 
other 
conditions 
precedent to an obligation to arbitrate have been met, are for 
the arbitrators to decide. City of Cottonwood v. James L. 
Fann 
Contracting, 
Inc., 
Ariz. 
185, 
P.2d 
284, 
(1994); 
Thomas v. Farmers Ins. Exchange, 
P.2d 532, 
(Colo. Ct. 
App. 
1993); Executive Life Ins. 
Co. 
v. 
John Hammer 
& Assoc., 
~, 569 So. 2d 855, 857 (Fla. Dist Ct. App. 1990); Amalgamated 
Transit Union Local 900 v. Suburban Bus Div., 262 Ill. App. 
3d 
334, 
Ill. Dec. 
630, 
635, 
N.E.2d 469, 
474(1994); 
Des 
Moines 
Asphalt & Paving 
Co. 
v. 
Colcon Industries Corp., 
N.W.2d 70, 72 (Iowa 1993); City of Lenexa v. C.L. Fairley Const. 
Co., 
Kan.App. 
2d 207, 
P.2d 507, 
(1991); The Beyt, 
Rish, 
Robbins Group v. 
Appalachian Reg. 
Healthcare, Inc., 
S.W.2d 
784, 
(Ky. 
Ct. 
App. 
1993); 
City of 
Dearborn 
v. 
Freeman-Darling, Inc., 119 Mich.App. 439, 326 N.W.2d 831 (1982); 
City of Morris v. Duininck Bros. Inc., 531 N.W.2d 208, 210 (Minn. 
Ct. App. 
1995); Gaines v. Fin. Planning Consultants, Inc., 857 
S.W.2d 430, 433 (Mo.Ct.App. 1993); Exber v. Sletten, 92 Nev. 721, 
P.2d 517 
(1976); State v. Stremick Const. Co., 
N.W.2d 
730, 735 (N.D. 1985); Messa v. State Farm Ins. Co., 433 Pa.Super. 
594,641 A.2d 1167,1170 (1994); Smith v. H.E. Butt Grocery Co., 
S.W.3d 910 (Tex. Ct. App. 2000); Valero Energy Corp. v. Teco 
Pipeline Co., 2 S.W.3d 576 (Tex. Ct. App. 1999); City of Lubbock 
v. Hancock, 
S.W.2d 123 (Tex. Ct. App. 1996); but see Smith 
Barney, Harris Upham & Co. v. Luckie, 58 N.Y.2d 193, 647 N.E.2d 
1308, 623 N.Y.S.2d 800 (1995) (stating that a court rather than 
an 
arbitrator 
under 
New 
York 
arbitration 
law 
should 
decide 
whether a statute of limitations time bars an arbitration). 
In particular it should 
be 
noted 
that 
Section 
6(b), 
which 
provides 
for 
courts 
to 
decide 
substantive 
arbitrability, 
is 
subject to waiver under Section 4(a). This approach is not only 
the law in most States but also follows Supreme Court precedent 
under the FAA that if there is no agreement to the contrary, 
questions of substantive arbitrability are for the courts to 
decide. First Options of Chicago, Inc. v. Kaplan, 
U.S. 
(1995). 
Some 
arbitration organizations, 
such as 
the 
American 
Arbi tration Association in its rules on commercial arbitration 
disputes, provide that arbitrators, rather than courts, make the 
initial 
determination 
as 
to 
substantive 
arbitrability. 
AAA, 
Commercial 
Disp. 
Resolution 
Pro. 
R-8(b); 
see 
also 
Apollo 
Computer, Inc. v. Berg, 
F.2d 469 (1st Cir. 1989) 
(finding 
that when parties agreed that all disputes arising out of or in 
connection with distributorship agreement would be settled by 
binding arbitration in accordance with the rules of arbitration 
of the International Chamber of Commerce, they agreed to submit 
issues of arbitrability to arbitrator); Daiei v. United States 
Shoe Corp., 755 F. Supp. 299 (D. Haw. 1991) (noting that parties 
agreed to submit issues of arbitrability to arbitrator, when they 
incorporated by 
reference in their arbitration agreement 
the 
rules of the International Chamber of Commerce providing that 
"any decision as to the arbitrator I s jurisdiction shall lie with 
the arbitrator"). 
Sections 6(c) and (d) are also waivable under Section 4(a). 
3. In deciding the validity of arbitration agreements ln the 
insurance industry under Sections 6(a) 
and (b), courts should 
note that such arbitration clauses trigger the need for analyses 
under the McCarran-Ferguson Act. 15 U. S. C. § 1012, the FAA, 
and 
applicable, relevant state law. 
4. 
The 
language 
in 
Section 
6(c), 
"whether 
a 
contract 
containing a valid agreement to arbitrate is enforceable," is 
intended to follow the "separability" doctrine outlined in Prima 
Paint Corp. v. Flood & Conklin Manufacturing Co., 
U.S. 
(1967). 
There the plaintiff filed a diversity suit ln federal 
court to rescind an agreement for fraud in the inducement and to 
enjoin arbitration. The alleged fraud was in inducing assent to 
the 
underlying 
agreement 
and 
not 
to 
the 
arbitration 
clause 
itself. 
The 
Supreme 
Court, 
applying 
the 
FAA 
to 
the 
case, 
determined that the arbitration clause was 
separable from the 
contract in which it was made. So long as no party claimed that 
only 
the 
arbitration clause 
was 
induced 
by 
fraud, 
a 
broad 
arbitration clause encompassed arbitration of 
a 
claim alleging 
that the underlying contract was induced by fraud. 
Thus, if a 
disputed issue is wi thin the scope of the arbitration clause, 
challenges to the enforceability of the underlying contract on 
grounds 
such 
as 
fraud, 
illegality, 
mutual 
mistake, 
duress, 
unconscionability, ultra vires and the like are to be decided by 
the arbitrator and not the court. 
See II Ian Macneil, Richard 
Speidel, 
and 
Thomas 
Stipanowich, 
Federal 
Arbitration 
Law 
§§15. 2-15.3 
(1995) 
[hereinafter "Macneil Treatise"]. A majority 
of States recognize some form of the separability doctrine under 
their state arbitration laws. Old Republic Ins. Co. v. Lanier, 
So. 
2d 
1258 
(Ala. 
1994); 
U.S. 
Insulation, 
Inc. 
v. 
Hilro 
Constr. 
Co., 
P.2d 
(Ariz. 
Ct. 
App. 
1985); 
Erickson, 
Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street, 35 
Cal. 3d 312, 197 Cal.Rptr. 581, 673 P.2d 251 (1983); Hercules & 
Co. 
v. 
Shama Rest. Corp., 
A.2d 
91.C 
(D.C. 
Ct. 
App. 
1992); 
Brown v. KFC Nat'l Mgmt. Co., 82 Hawaii 226, 921 P.2d 146 (1996); 
Quirk v. Data Terminal Systems, Inc., 739 Mass. 762, 400 N.E.2d 
(Mass. 1980); Weinrott v. Carp, 32 N.Y.2d 190, 298 N.E.2d 42, 
N.Y.S.2d 848 (1973); Weiss v. Voice/Fax Corp., 94 Ohio App. 
3d 309, 
N.E.2d 875 
(Ohio 1994); Jackson Mills, Inc. v. 
BT 
Capital Corp., 440 S.E.2d 877 (S.C. 1994); South Carolina Pub. 
Servo 
Auth. 
V. Great Western Coal, 
S.E.2d 22 
(S.C. 
1993); 
Gerwell v. Moran, 10 S.W.3d 28 (Tex. Ct. App. 1999); Schneider, 
Inc. V. Research-Cottrell, Inc., 474 F. Supp 1179 (W.D. Pa, 1979) 
(applying Pennsylvania law); 
New Process Steel Corp. 
v. 
Titan 
Indus. Corp., 555 F. Supp. 1018 (S.D. Tex. 1983) (applying Texas 
law); Pinkis v. Network Cinema Corp., 512 P.2d 751 (Wash. 1973). 
Other States have either limited or declined to follow the Prima 
Paint doctrine on separability. Rosenthal v. Great W. Fin. Sec. 
~, 14 Cal. 
4th 394, 
Cal. Rptr. 
2d 875, 
P. 2d 1061 
(1996); Goebel v. Blocks and Marbles Brand Toys, Inc., 568 N.E.2d 
(Ind. 1991); City of Wamego v. L.R. Foy Constr. Co, 675 P.2d 
(Kan. 
Ct. 
App. 
1984); 
George 
Engine 
Co. 
v. 
Southern 
Shipbuilding Corp., 376 So. 2d 1040 (La. Ct. App. 1977); Holmes 
v. Coverall N. 
Am., 
Inc., 
A.2d 932 
(Md. 
1993); Atcas v. 
Credit Clearing Corp. of Am., 197 N.W.2d 448 (Minn. 1972); Shaw 
v. 
Kuhnel 
& Assocs., 
P.2d 
(N.M. 
1985); 
Shaffer v. 
Jeffery, 915 P.2d 910 (Okla. 1996) (recognizing that majority of 
States apply the doctrine of separability but declining to follow 
the doctrine); Frizzell Const. Co. v. Gatlinburg L.L.C., 9 S.W.3d 
(Tenn. 1999). 
5. Waiver is one area where courts, rather than arbitrators, 
often make the decision as to enforceability of an arbitration 
clause. 
However, 
because 
of 
the 
public 
policy 
favoring 
arbitration, a court normally will only find a waiver of a right 
to arbitrate where a party claiming waiver meets the burden of 
proving 
that 
the 
waiver 
has 
caused 
prejudice. 
Sedillo 
v. 
Campbell, 5 S.W.3d 824 (Tex. Ct. App. 1999). For instance, where 
a 
plaintiff brings 
an action against 
a 
defendant in court, 
engages in extensive discovery and then attempts to dismiss the 
lawsui t 
on the grounds of an arbitration clause, 
a defendant 
might challenge the dismissal on the grounds that the plaintiff 
has waived any right to use of the arbitration clause. S&R Co. of 
Kingston v. Latona TrUCking, Inc., 159 F.3d 80 (2d Cir. 1998). 
Allowing the court to decide this issue of arbitrability comports 
with the separability doctrine because in most instances waiver 
concerns only the arbitration clause itself and not an attack on 
the underlying contract. It is also a matter of judicial economy 
to 
require that 
a 
party, 
who 
pursues 
an action in a 
court 
proceeding but later claims arbitrability, be held to a decision 
of the court on waiver. 
6. 
Section 
6(d) 
follows 
the 
practice 
of 
the 
American 
Arbi tration Association and most other arbitration organizations 
that if a party challenges the arbitrability of a dispute in a 
court proceeding, the arbitration organization or arbitrators in 
their discretion may continue with the arbitration unless a court 
issues 
an 
order 
to 
stay 
the 
arbitration or 
makes 
a 
final 
determination that the matter is not arbitrable. 
7. 
Contracts 
of 
adhesion 
and 
unconscionability: 
Unequal 
bargaining power often affects contracts containing arbitration 
provisions 
involving 
employers 
and 
employees, 
sellers 
and 
consumers, 
health 
maintenance 
organizations 
and 
patients, 
franchisors and franchisees, and others. 
Despi te some recent developments to the contrary, courts do not 
often 
find 
contracts 
unenforceable 
for 
unconscionability. 
To 
determine whether to void 
a 
contract on this ground, 
courts 
examine 
a 
number 
of factors. 
These 
factors 
include: 
unequal 
bargaining 
power, 
whether 
the 
weaker 
party 
may 
opt 
out 
of 
arbitration, the clarity and conspicuousness of the arbitration 
clause, 
whether 
an unfair advantage is obtained, 
whether 
the 
arbi tration 
clause 
is 
negotiable, 
whether 
the 
arbitration 
provision is boilerplate, 
whether 
the 
aggrieved party had 
a 
meaningful choice or was compelled to accept arbitration, whether 
the arbitration agreement is within the reasonable expectations 
of 
the 
weaker 
party, 
and 
whether 
the 
stronger 
party 
used 
deceptive tactics. See, e.g., We Care Hair Dev., Inc. v. Engen, 
F.3d 838 (7th Cir. 1999); Harris v. Green Tree Fin. Cor!?, 
F.3d 173 
(3d Cir. 
1999); 
Broemmer 
v. 
Abortion 
Servo 
of 
Phoenix, 
Ltd., 
Ariz. 
148, 
P.2d 1013 
(1992); 
Chor 
V. 
Piper, 
Jaffray & Hopwood, 
Inc., 
Mont. 
143, 
P.2d 
(1993); Buraczynski v. Eyring, 919 S.W.2d 314 (Tenn. 1996); Sosa 
v. Paulos, 924 P.2d 357 (Utah 1996); Powers v. Dickson, Carlson & 
Campillo, 
Cal. App. 4th 1102, 
Cal. Rptr. 
2d 261 (1997); 
Beldon Roofing & Remodeling Co. v. Tanner, 1997 WL 280482 (Tex. 
Ct. App. May 28, 1997). 
Despite these many factors, courts have been reluctant to find 
arbitration 
agreements 
unconscionable. 
II 
Macneil 
Treatise § 
19.3; David S. 
Schwartz, 
Enforcing Small Print to Protect Big 
Business: 
Employee 
and 
Consumer 
Rights 
Claims 
in 
an 
Age 
of 
Compelled Arbitration, 1997 Wis. 
L. 
Rev. 
(1997); Stephen J. 
Ware, 
Arbitration 
and 
Unconscionability 
After 
Doctor's 
Associates, 
Inc. 
v. 
Cassarotto, 
Wake 
Forest L. 
Rev. 
1001 
(1996). However, in the last few years, some cases have gone the 
other way and courts have begun to scrutinize more closely the 
enforceability of arbitration agreements. Hooters of Am., Inc. V. 
Phillips, 173 F.3d 933 
(4th Cir. 1999) (stating that one-sided 
arbitration agreement that takes away numerous substantive rights 
and remedies of employee under Title V 1 I 
is so egregious as to 
constitute 
a 
complete 
default 
of 
employer's 
contractual 
obligation to draft arbitration rules in good faith); Shankle V. 
B-G Maint. Mgt., Inc., 163 F. 3d 1230 (lOth Cir. 1999) (finding 
that 
an 
arbitration 
clause 
does 
not 
apply 
to 
employee's 
discrimination claims where employee is required to pay portion 
of arbitrator's fee that is a prohibitive cost for him so as to 
substantially limit his use of arbitral forum); Randolph V. Green 
Tree Fin. Corp., 178 F.3d 1149 (11th Cir. 1999), cert. granted, 
S.Ct. 1552, 146 L.Ed. 
2d 458 (2000) 
(holding that consumer 
not required to arbitrate where arbitration clause is silent on 
subject of arbitration fees and costs due to risk that imposition 
of large fees and costs on consumer may defeat remedial purposes 
of Truth in Lending Act) [but cf. Dobbins v. Hawk's Enter., 198 
F.3d 715 (8th Cir. 1999) (finding that before court can determine 
if administrative costs make arbitration clause unconscionable, 
purchasers must explore whether arbitration organization will 
waive or diminish its fees or whether seller will offer to pay 
the fees)]; Paladino v. Avnet Computer Tech., Inc., 134 F.3d 1054 
(11th Cir. 1998) (employee not required to arbitrate Title VII 
claim where the contract limits damages below that allowed by the 
statute); 
Broemmer v. 
Abortion Servo 
of Phoenix, 
Ltd., 
supra 
(stating that arbitration agreement 
unenforceable 
because it 
required a patient to arbitrate a malpractice claim and to waive 
the right to jury trial and was beyond the patient's reasonable 
expectations where drafter inserted potentially advantageous term 
requiring arbitrator of malpractice claims 
to be 
a 
licensed 
medical doctor); Armendariz V. Foundation Health Psychcare Servo 
Inc., 24 Cal. 4th 83, 6 P. 3d 669, 99 Cal. Rptr. 2d 745 (2000) 
(concl uding 
that 
clause 
in 
arbitration 
agreement 
limiting 
employee's remedies in state anti-discrimination claims is cause 
to void arbitration agreement on grounds of unconscionability); 
Broughton V. Cigna Heal thplans of California, 21 Cal. 4th 1066, 
P.2d 67, 
Cal. 
Rptr. 
2d 
(1999); 
(finding although 
consumer's claim for damages under consumer protection statute is 
arbitrable, claim for injunctive relief is not because of the 
public benefit for the injunctive remedy and the advantages of a 
judicial forum for such relief); Engalla v. Permanente Med. Grp., 
Cal. 4th 951, 
P.2d 903, 
Cal. 
Rptr. 
2d 843 
(1997) 
(stating that health maintenance organization may 
not 
compel 
arbitration where it fraudulently induced participant to agree to 
the arbitration of disputes, fraudulently misrepresented speed of 
arbitration selection process and forced delays so as to waive 
the right of arbitration); Gonzalez V. Hughes Aircraft Employees 
Fed. Credit Union, 
Cal. App.4th 468, 
Cal. Rptr. 
2d 526 
(1999) (holding that arbitration agreement which has unfair time 
limits 
for 
employees 
to file 
claims, 
requires 
employees 
to 
arbitrate virtually all claims but allows employer to obtain 
judicial relief in virtually all employment matters, and severely 
limits 
employees' 
discovery 
rights 
is 
both procedurally 
and 
substantively unconscionable); 
Stirlen 
V. 
Supercuts, 
Inc., 
Cal. App. 4th 1519, 
Cal. Rptr. 
2d 138 
(1997) 
(ruling that 
one-sided compulsory arbitration clause which reserved litigation 
rights 
to 
the 
employer 
only 
and 
denied 
employees 
rights 
to 
exemplary damages, equitable relief, attorney fees, costs, and a 
shorter statute of limitations unconscionable); Rembert v. Ryan's 
Family Steak House, 
Mich.App. 
118, 
N.W.2d 208 
(1999) 
(concluding that a predispute agreement to arbitrate statutory 
employment 
discrimination 
claims 
was 
valid only 
as 
long 
as 
employee did not waive any rights or remedies under the statute 
and arbitral process 
was 
fair); 
Alamo 
Rent 
A Car, 
Inc. 
V. 
Galarza, 306 N.J. Super. 384, 703 A.2d 961 (1997) (finding that 
an arbitration clause that does not clearly and unmistakably 
include 
claims 
of 
employment 
discrimination 
fails 
to 
waive 
employee's statutory rights and remedies); Arnold V. United Co. 
Lending Corp., 
S.E.2d 854 
(W. 
Va. 
1998) 
(holding that an 
arbitration clause in consumer loan transaction that contained 
waiver of the consumer's rights to access to the courts, while 
reserving practically all of the lender's right to a judicial 
forum found unconscionable). 
As a result of concerns over fairness in arbitration involving 
those 
with 
unequal 
bargaining 
power, 
organizations 
and 
individuals involved in employment, 
consumer, 
and health-care 
arbi tration have determined common standards for arbitration in 
these 
fields. 
In 
1995, 
a 
broad-based coalition 
representing 
interests of employers, 
employees, arbitrators and arbitration 
organizations agreed upon a Due Process Protocol for Mediation 
and 
Arbitration 
of 
Statutory 
Disputes 
Arising 
Out 
of 
the 
Employment 
Relationship: 
see 
also 
National 
Academy 
of 
Arbitrators, Guidelines on Arbitration of Statutory Claims under 
Employer-Promulgated Systems (May 21, 1997). In 1998, a similar 
group representing the views of consumers, industry, arbitrators, 
and 
arbitration 
organizations 
formed 
the 
National 
Consumer 
Disputes Advisory Committee under the auspices of the American 
Arbi tration Association and adopted a Due Process Protocol for 
Mediation and Arbitration of Consumer Disputes. Also in 1998 the 
Commission 
on 
Health 
Care 
Dispute 
Resolution, 
comprised 
of 
representatives from the American Arbitration Association, 
the 
American Bar Association and the American Medical Association 
endorsed a Due Process Protocol for Mediation and Arbitration of 
Health Care Disputes. The purpose of these protocols is to ensure 
both 
procedural 
and 
substantive 
fairness 
in 
arbitrations 
involving employees, consumers and patients. The arbitration of 
employment, consumer and health-care disputes in accordance with 
these standards will be a legitimate and meaningful alternative 
to litigation. See, e.g., Cole v. 
Burns Int' 1 Sec. Serv., 105 
F.3d 1465 (D.C. Cir. 1997) 
(referring specifically to the due 
process 
protocol 
in 
the 
employment 
relationship 
in 
a 
case 
involving the arbitration of an employee's rights under Title 
VII) . 
The Drafting Committee determined to leave the issue of adhesion 
contracts and unconscionability to developing law because (1) the 
doctrine of unconscionability reflects so much the substantive 
law of the States and not just arbitration, (2) the case law, 
statutes, and arbitration standards are rapidly changing, and (3) 
treating arbitration clauses differently 
from 
other 
contract 
provisions would raise significant preemption issues under the 
Federal Arbitration Act. However, it should be pointed out that a 
pr imary purpose of Section 4, which provides that some sections 
of the 
RUAA 
are not waivable, 
is to address the problem of 
contracts of adhesion in the statute while taking into account 
the limitations caused by federal preemption. 
Because an arbitration agreement effectively waives 
a party's 
right to a jury trial, courts should ensure the fairness of an 
agreement 
to 
arbitrate, 
particularly 
in 
instances 
involving 
statutory rights that provide claimants with important remedies. 
Courts should determine that an arbitration process is adequate 
to 
protect 
important 
rights. 
Without 
these 
safeguards, 
arbitration loses credibility as an appropriate alternative to 
litigation. 
§8707. 
Motion to compel or stay arbitration 
1. 
Motion to compel arbitration. 
On motion of a person 
showing an agreement to arbitrate and alleging another person's 
refusal to arbitrate pursuant to the agreement: 
A. 
If the refusing party does not appear or does not oppose 
the motion, the court shall order the parties to arbitrate; 
and 
B. 
If the refusing party opposes the motion, 
the court 
shall proceed summarily to decide the issue and order the 
parties to arbitrate unless it finds 
that there is 
no 
enforceable agreement to arbitrate. 
2. 
Motion 
that 
no 
agreement. 
On 
motion 
of 
a 
person 
alleging that an arbitration proceeding has been initiated or 
threatened but that there is no agreement to arbitrate, the court 
shall proceed summarily to decide the issue. If the court finds 
that there is an enforceable agreement to arbitrate, it shall 
order the parties to arbitrate. 
3. 
No enforceable agreement. 
If the court finds that there 
is no enforceable agreement. it may not order the parties to 
arbitrate pursuant to subsection 1 or 2. 
4. 
Claim lacks merit, grounds not established. 
The court 
may not refuse to order arbitration because the claim subiect to 
arbi tration lacks merit or grounds for the claim have not been 
established. 
5. 
Claim pending in court. 
If a proceeding involving a 
claim referable to arbitration under an alleged agreement to 
arbitrate is pending in court. a motion under this section must 
be made in that court. Otherwise a motion under this section may 
be made in any court as provided in section 8727. 
6. 
Stay 
judicial 
proceeding 
upon 
motion 
to 
order 
arbitration. 
If a party makes a motion to the court to order 
arbitration, 
the court on just terms shall stay any judicial 
proceeding that involves a claim alleged to be subject to the 
arbitration until the court renders a final decision under this 
section. 
1. 
Stay judicial proceeding upon order to arbitrate. 
If 
the court orders arbitration, the court on just terms shall stay 
any judicial proceeding that involves 
a 
claim subject to the 
arbitration. 
If a claim subject to the arbitration is severable, 
the court may limit the stay to that claim. 
Uniform CoD'ftent 
The term "summarily" in Section 7(a) and (b) is presently in 
UAA Section 2(a) and (b). It has been defined to mean that a 
trial court should act expeditiously and without a jury trial to 
determine whether a valid arbitration agreement exists. Grad v. 
Wetherholt Galleries, 
A.2d 
(D.C. 
1995); 
Wallace 
v. 
Wiedenbeck, 
A.D.2d 1091, 
N.Y.S.2d 230, 
(N.Y. 
App. 
Div. 
1998); 
Burke v. 
Wilkins, 
S.E.2d 913 
(N.C. 
Ct. 
App. 
1998); In re MEl P'ship, Ltd., 7 S.W.3d 918 (Tex. Ct. App. 1999). 
The term is also used in Section 4 of the FAA. 
§8108. 
Provisional remedies 
1. 
Order for provisional remedies before arbitrator can 
act. 
Before an arbitrator is appointed and is authorized and 
able to act, the court, upon motion of a party to an arbitration 
proceeding and for good cause shown, 
may enter an order for 
provisional 
remedies 
to 
protect 
the 
effectiveness 
of 
the 
arbitration proceeding to the same extent and under the 
same 
conditions as if the controversy were the subject of a civil 
action. 
2. 
Provisional remedies ordered by arbitrator. 
After an 
arbitrator is appointed and is authorized and able to act: 
A. 
The arbitrator may issue such orders for provisional 
remedies, including inter im awards, as the arbi trator finds 
necessary to protect the effectiveness of the arbitration 
proceeding 
and 
to 
promote 
the 
fair 
and 
expeditious 
resolution of the controversy, to the same extent and under 
the same conditions as if the controversy were the subject 
of a civil action: and 
B. 
A party to an arbitration proceeding may move the court 
for a provisional remedy only if the matter is urgent and 
the arbitrator is not able to act timely or the arbitrator 
can not provide an adequate remedy. 
3. 
Arbitration not waived. 
A party does not waive a right 
of arbitration by making a motion under subsection 1 or 2. 
Uniform Conaent 
1. The language of Section 8 is similar to that considered 
by the Drafting Committee of the UAA 
in 1954 
and 1955; 
the 
following was included in Section 4 of the 1954 draft but was 
omitted in the 1955 UAA: 
"At 
any time prior to 
judgment on the 
award, 
the court on 
application of a party may grant any remedy available for the 
preservation of property or securing the satisfaction of the 
judgment to the same extent and under the same conditions as if 
the dispute were in litigation rather than arbitration." 
In Salvucci v. Sheehan, 349 Mass. 659, 212 N.E.2d 243 (1965), the 
court allowed the issuance of a temporary restraining order to 
prevent the defendant from conveying or encumbering property that 
was 
the 
subject of 
a 
pending arbitration. 
The Massachusetts 
Supreme Court noted the 1954 language and determined that it was 
not adopted by the National Conference because the section would 
be rarely needed and raised concerns about the possibility of 
unwarranted 
labor 
injunctions. 
The 
court 
concluded that 
the 
drafters 
of 
the 
UAA 
assumed 
that 
courts' 
jurisdiction 
for 
granting 
such 
provisional 
remedies 
was 
consistent 
with 
the 
purposes and terms of the act. Many States have allowed courts to 
grant provisional relief for disputes that will ultimately be 
resolved by arbitration. BancAmerica Commercial Corp. v. Brown, 
P.2d 897 (Ariz. Ct. App. 1991) (discussing writ of attachment 
in order to secure a settlement agreement between debtor and 
creditor); Lambert v. Superior Court, 228 Cal. App. 3d 383, 279 
Cal. 
Rptr. 
(1991) 
(discussing mechanic's 
lien); 
Ross 
v. 
Blanchard, 
Cal. 
App. 
2d 
739, 
Cal. 
Rptr. 
(1967) 
(discharge 
of 
attachment): 
Hughley 
v. 
Rocky 
Mountain 
Health 
Maint. 
Org., 
Inc., 
P.2d 1325 
(Colo. 
1996) 
(stating that 
preliminary 
injunction 
to 
continue 
status 
quo 
that 
health 
maintenance 
organization 
must 
provide 
chemotherapy 
treatment 
until arbitration decision): Merrill Lynch, 
Pierce, 
Fenner 
& 
Smith, 
Inc. 
v. 
District Court, 
P.2d 
1015 
(Colo. 
1983) 
(discussing preliminary injunctive relief 
to 
preserve 
status 
quo); Langston v. National Media Corp., 420 Pa.Super. 611, 
A.2d 
(1992) 
(discussing preliminary 
injunction requiring 
party to place money in an escrow account); Cal. Civ. Proc. Code 
§ 1281.8; N.J. Stat. Ann. § 2A:23A-6(b); N.Y. C.P.L.R. § 7502(c). 
Most federal courts applying the FAA 
agree with the Salvucci 
court. In Merrill Lynch v. Salvano, 999 F.2d 211 (7th Cir. 1993), 
the Seventh Circuit allowed a 
temporary restraining order to 
prevent employees from soliciting clients or disclosing client 
information in anticipation of 
a 
securities arbitration. 
The 
court held that the temporary injunctive relief would continue in 
force until 
the arbitration panel itself could consider 
the 
order. 
The court noted that "the weight of federal appellate 
authority recognizes some equitable power on the part of the 
district court to issue preliminary injunctive relief in disputes 
that are ultimately to be resolved by an arbitration panel." Id. 
at 214. The First, Second, Fourth, Seventh and Tenth Circuits 
have followed this approach. See II Macneil Treatise §25.4. 
The exception under the FAA 
1S the Eighth Circuit in Merrill 
Lynch, Pierce, Fenner & Smith, Inc. v. Hovey, 726 F.2d 1286 (8th 
Cir. 1984), which concluded that preliminary injunctive relief 
under 
the 
FAA 
is 
simply 
unavailable, 
because 
the 
"judicial 
inquiry requisite to determine the propriety of injunctive relief 
necessarily would inject the court into the merits of issues more 
appropriately left to the arbitrator." Id. 
at 1292; 
see also 
Peabody Coalsales Co. v. Tampa Elec. Co., 36 F.3d 46 (8th Cir. 
1994). 
2. The Hovey case underscores the difficult conflict raised 
by interim judicial remedies: they can preempt the arbitrator 0 s 
authority to decide a case and cause delay, cost, complexity, and 
formality through intervening litigation process, 
but without 
such protection an arbitrator 0 s award may be worthless. See II 
Macneil Treatise §25.1. Such relief generally takes the form of 
an 
injunctive 
order, 
e.g., 
requiring 
that 
a 
discontinued 
franchise 
or 
distributorship 
remain 
1n 
effect 
until 
an 
arbitration 
award, 
Rosa-Lino 
Beverage 
Distribs., 
Inc. 
v. 
Coca-Cola 
Bottling 
Co., 
F.2d 
(2d 
Cir. 
1984); 
Guinness-Harp Corp. v. Jos. Schlitz Brewing Co., 613 F.2d 468 (2d 
Cir. 
1980), 
or that a 
former 
employee not solicit customers 
pending arbitration, Merrill Lynch, Pierce, Fenner & Smith, Inc. 
v. Sa1vano, 999 F.2d 211 (7th Cir. 1993); Merrill Lynch, Pierce, 
Fenner & Smith, Inc. v. Dutton, 844 F.2d 726 (10th Cir. 1988); or 
that a 
party be 
required to post 
some 
form 
of 
security by 
attachment, lien, or bond, The Anaconda v. American Sugar Ref. 
~, 322 U.S. 42, 64 S.Ct. 863 (1944) (attachment -
see also 9 
U.S.C. § 8); Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith, 
~, 910 F. 2d 1049 
(2d Cir. 
1990) 
(injunction bond); 
see II 
Macneil 
Treatise 
§25.4.3. 
In 
a 
judicial 
proceeding 
for 
preliminary relief, the court does not have the benefit of the 
arbitrator I s determination of disputed issues or interpretation 
of 
the 
contract. 
Another 
problem 
for 
a 
court 
is 
that 
in 
determining the 
propriety of 
an injunction, 
order, 
writ for 
attachment or other security, the court must make an assessment 
of hardships upon the parties and the probability of success on 
the merits. Such determinations fly in the face of the underlying 
philosophy 
of 
arbitration 
that 
the 
parties 
arbitrators to decide the merits of their disputes. 
have 
chosen 
3. 
The 
approach in 
RUAA 
Section 
that limits 
a 
court 
abili ty to grant preliminary relief to any time "[b) efore an 
arbitrator is appointed or is authorized or able to act ...... 
upon motion of a party" and provides that after the appointment 
the 
arbitrator 
initially 
must 
decide 
the 
propriety 
of 
a 
provisional 
remedy, 
avoids 
the 
delay 
of 
intervening 
court 
proceedings, 
does not cause courts to become involved in the 
meri ts 
of 
the 
dispute, 
defers 
to 
the 
parties' 
choice 
of 
arbitration to resolve their disputes, and allows courts that may 
have to review an arbitrator's preliminary order the benefit of 
the arbitrator's judgment on that matter. See II Macneil Treatise 
§§ 25.1.2, 25.3, 36.1. This language incorporates the notions of 
the Salvano case that upheld the district court's granting of a 
temporary restraining order to prevent defendant from soliciting 
clients or disclosing client information but "only until the 
arbitration panel is able to address whether the 
TRO 
should 
remain in effect. Once assembled, an arbitration panel can enter 
whatever 
temporary 
injunctive 
relief it 
deems 
necessary 
to 
maintain the status quo." 999 F.2d at 215. The Salvano court's 
preliminary remedy was necessary to prevent actions that could 
undermine an arbitration award but was accomplished in a fashion 
that protected the integrity of the arbitration process. See also 
Ortho Pharm. 
Corp. v. 
Amgen, 
Inc., 
F.2d 806, 
814, 
appeal 
after remand, 
F. 2d 460 
(3d Cir. 1989) (stating that court 
order to protect the status quo is necessary "to protect the 
integrity of the applicable dispute resolution process"); Hughley 
v. Rocky Mountain Health Maint. Org., Inc., 927 P.2d 1325 (Colo. 
1996) 
(granting preliminary injunction to continue status quo 
that health maintenance organization must provide chemotherapy 
treatment when denial of the relief would make the arbitration 
process a futile endeavor); King County v. Boeing Co., 18 Wash. 
App. 
595, 
P.2d 712 
(1977) 
(denying request for declaratory 
judgment 
because 
the 
issue 
was 
for 
determination 
by 
the 
arbitrators rather than the court); N.J. Stat. Ann. § 2A:23A-6(b). 
After the arbitrator is appointed and authorized and able to act, 
the only instance in which a party may seek relief from a court 
rather than the arbitrator is when the matter is an urgent one 
and the arbitrator could not act in a timely fashion or could not 
provide an effective provisional remedy. The notion of "urgency" 
is from the 1996 English Arbitration Act § 44(1), (3), (4), (6). 
These circumstances of a party seeking provisional relief from a 
court rather than an arbitrator after the appointment process 
should be limited for the policy reasons previously discussed. 
4. 
The 
organizations, 
case 
and 
law, 
some 
commentators, 
state statutes 
rules 
of 
are 
very 
arbitration 
clear 
that 
arbitrators have broad authority to order provisional remedies 
and interim relief, including interim awards, in order to make a 
fair determination of 
an arbitral matter. 
This authority has 
included the issuance of measures equivalent to civil remedies of 
attachment, replevin, and sequestration to preserve assets or to 
make preliminary rulings ordering parties to undertake certain 
acts 
that 
affect 
the 
subject 
matter 
of 
the 
arbitration 
proceeding. See, e.g., Island Creek Coal Sales Co. 
v. City of 
Gainesville, Fla., 729 F.2d 1046 (6th Cir. 1984) (upholding under 
FAA 
arbitrator's 
interim 
award 
requiring 
city 
to 
continue 
performance of coal purchase contract until further order of 
arbitration panel); Frau10 v. Gabelli, 
Conn. 
App. 
708, 
A.2d 704 
(1995) 
(upholding under 
UAA arbitrator's issuance of 
preliminary orders 
regarding sale 
and proceeds 
of property); 
Fishman v. Streeter, 
1992 
WL 
146830 
(Ohio Ct. 
App., 
June 25, 
1992) (upholding under UAA arbitrator's interim order dissolving 
partnership); Park City Assoc. v. Total Energy Leasing Corp., 58 
A. 
D.2d 786, 
N.Y.S.2d 377 
(1977) 
(upholding under New York 
state 
arbitration 
statute 
a 
preliminary 
injunction 
by 
an 
arbitrator); N.J. 
Stat. 
Ann. 
§ 
2A:23A-6 
(allowing provisional 
remedies such as "attachment, replevin, sequestration and other 
corresponding or equivalent 
remedies"); 
AAA, 
Commercial 
Disp. 
Resol ution Pro. R-36, 
(allowing arbitrator to take "whatever 
interim measures he or she deems necessary, including injunctive 
relief 
and 
measures 
for 
the 
protection 
or 
conservation 
of 
property 
and 
disposition 
of 
perishable 
goods. 
Such 
interim 
measures 
may 
take 
the 
form 
of 
an 
interim 
award, 
and 
the 
arbitrator may require security for costs of such measures."); 
CPR Rules 12.1, 13.1 (allowing interim measures including those 
"for preservation of assets, the conservation of goods or the 
sale of perishable goods," requiring "security for the costs of 
these 
measures," 
and 
permitting 
"interim, 
interlocutory 
and 
partial awards"); UNCITRAL Commer. Arb. Rules, Art. 17 (providing 
that arbitrators can take "such interim measure of protection as 
the arbitral tribunal may consider necessary in respect of the 
subject-matter of the dispute," including security for costs); II 
Macneil Treatise §§ 25.1.2, 25.3, 36.1. 
If an arbitrator orders a provisional remedy under Section 8(b), 
a party can seek court enforcement of that preaward ruling under 
Section 18. 
5. The intent of RUAA Section 8( a) is to grant the court 
discretion 
to 
proceed 
if 
a 
party 
files 
a 
request 
for 
a 
provisional remedy before an arbitrator is appointed but, while 
the court action is pending an arbitrator is appointed. 
For 
example, if a court has issued a temporary restraining order and 
an order to show cause but before the order to show cause comes 
to a hearing in the court, an arbitrator is appointed, the court 
could 
continue 
with 
the 
show-cause 
proceeding 
and 
issue 
appropriate relief or could defer the matter to the arbitrator. 
It is only where a party initiates an action after an arbitrator 
is appointed that the request for a provisional remedy usually 
should be made to the arbitrator. 
6. 
If 
a 
court 
makes 
a 
ruling 
under 
Section 8(a), 
an 
arbitrator 
is 
allowed 
to 
review 
the 
ruling 
in 
appropriate 
circumstances under Section 8(b). For example, a court, on the 
basis of affidavits or other 
summary material, 
may grant 
a 
temporary restraining order to prohibit a party from transferring 
property. After an arbitrator is appointed, the arbitrator may 
decide after a fuller review of the evidence that the party 
should be allowed to transfer the property. This would be 
a 
proper decision because the arbitrator, rather than the court, 
may have access to more evidence and it is the arbitrator who 
makes the final decision on the merits. 
7. Section 8 (c) is intended to insure that so long as a 
party is pursuing the arbitration process while requesting the 
court to provide provisional relief under RUAA Section 8 (a) or 
(b), the motion to the court should not act as a waiver of that 
party's right to arbitrate a matter. See Cal. Civ. Proc. Code § 
1281.8(d). 
§S709. 
Initiation of arbitration 
1. 
Giving 
notice. 
A 
person 
initiates 
an 
arbitration 
proceeding by giving notice in a record to the other parties to 
the agreement to arbitrate in the agreed manner between the 
parties 
or, 
in 
the 
absence 
of 
agreement, 
by 
certified 
or 
registered mail, return receipt requested and obtained, or by 
service as authorized for the commencement of a civil action. 
The notice must describe the nature of the controversy and the 
remedy sought. 
2. 
Lack 
or 
insufficiency of notice. 
Unless 
a 
person 
objects for lack or insufficiency of notice under section 8715, 
subsection 3 not later than the beginning of the arbitration 
hearing, 
the person by appearing at the hearing waives 
any 
objection to lack of or insufficiency of notice. 
Uniform Comment 
1. 
Section 
is a 
new provision in the 
RUAA 
regarding 
ini tiation of an arbitration proceeding and is more formal than 
the notice requirements in Section 2. The language in Section 9 
is based 
upon 
the Florida arbitration statute and, 
to 
some 
extent, 
the 
Indiana arbitration act, 
both of 
which 
include 
provisions regarding the commencement of an arbitration. Fla. 
Stat. Ann. § 648.08 (1990); Ind. Code § 34-57-2-2 (1998). 
2. Section 9(a) includes both the means of bringing the 
notice to the attention of the other parties and the contents of 
the notice of a claim. Both the means of giving the notice and 
the content of the notice are subject to the parties' agreement 
under Sections 4(b)(2) and 9(a) so long as any restrictions on 
the means or content are reasonable. Not only does this approach 
comport with the concept of party autonomy in arbitration but it 
also 
recognizes 
that 
many 
parties 
utilize 
arbitration 
organizations 
that 
require greater 
or 
lesser 
specificity of 
notice and service. 
3. The introductory language to Section 9 (a) concerns the 
means of informing other parties of the arbi tration proceeding. 
Many 
arbitration 
organizations 
allow 
parties 
to 
initiate 
arbitration through the use of regular mail and do not require 
registered mail or service as in a civil action. 
See, 
e.g., 
American 
Arb. 
Ass'n, 
National 
Rules 
for 
the 
Resolution 
of 
Employment Disputes, R. 4(b)(i)(2); Center for Public Resources, 
Rules for Non-Administered Arbitration of Business Disputes, R. 
2.1; National Arb. Forum Code of Pro. R. 6(B); National Ass'n of 
Secur i ties Dealers Code of Arb. Procedure, Part L 
sec. 
(a) ; 
New York Stock Exchange Arb. Rules, R. 612(b). This more informal 
means 
of giving notice without evidence of receipt would 
be 
allowed 
under 
Section 
because 
Section 4(b)(2) 
allows 
the 
parties to agree to the means of giving notice so long as there 
are no unreasonable restrictions. 
Likewise, 
parties, 
electronic commerce, 
between them and to 
particularly in 
may decide to 
provide notice 
light of 
the 
increase 
In 
arbitrate disputes arising 
of the initiation or other 
proceedings of the arbitration process through electronic means. 
See, e.g., National Arb. Forum Code of Pro. R. 6(B). 
However, if the parties do not provide for a reasonable means of 
notice, 
then Section 9(a) 
requires that they utilize either 
certified or registered mail, with a return-receipt request and 
that such receipt is obtained, or the same type of service as 
authorized as in a civil action. The term "obtained" is intended 
to mean that the receipt was returned regardless of whether the 
recipient signed it. 
4. 
Section 
9(a) 
explicitly 
requires 
that 
notice 
of 
initiation of an arbitration proceeding be given to all parties 
to the arbitration agreement and not just to the party against 
whom 
a person files an arbitration claim. For instance, in a 
construction contract with a single arbitration agreement between 
multiple 
contractors 
and 
subcontractors, 
if 
one 
contractor 
commenced an arbitration proceeding against one subcontractor, 
Section 9(a) 
requires that the contractor give notice to all 
persons 
signatory 
to 
the 
arbitration 
agreement. 
This 
is 
appropriate because a different contractor or subcontractor may 
have an interest in the arbitration proceeding so as to initiate 
its own arbitration proceeding or to request consolidation under 
Section 10 or to take other action. 
5. Section 9(a) also includes a content requirement that the 
initiating party inform the other parties of "the nature of the 
controversy and the 
remedy sought." Similar 
requirements 
are 
found in the Florida and Indiana statutes and in the arbitration 
rules 
of 
organizations 
such 
as 
the 
American 
Arbitration 
Association, 
the 
Center 
for 
Public 
Resources, 
JAMS, 
NASD 
Regulation, 
Inc., 
and 
the 
New 
York 
Stock 
Exchange 
(although 
slightly different language may be used in the organizations' 
rules). This language in Section 9(a) is intended to insure that 
parties provide sufficient information in the notice to inform 
opposing parties of the arbitration claims while recognizing that 
this notice is not a formal pleading and that persons who are not 
attorneys often draft such notices. 
6. Section 23(a)(6) allows a court to vacate an award if 
there is not proper notice under Section 9 and the rights of the 
other party were substantially prejudiced. Section 9(b) requires 
that the complaining party make a timely objection to the lack or 
insufficiency of notice of initiation of the arbitration; this 
requirement is similar to that found in Section 15(c) regarding 
notice of the arbitration hearing. 
Section 9(b) 
requires the 
party to object "no later than the beginning of the hearing" 
under Section 15(c), which is a time certain in the arbitration 
process. 
If the appearance at the arbitration hearing is for the purpose 
of raising the objection as to notice and such objection has not 
otherwise been waived, the party's appearance for the purpose of 
raising that objection should not be construed as untimely. 
§S710. 
Conso1idation of separate arbitration proceedings 
1. 
Conso1idation by court. 
Except as otherwise provided in 
subsection 3, upon motion of a party to an agreement to arbitrate 
or 
to 
an 
arbitration 
proceeding, 
the 
court 
may 
order 
consolidation of separate arbitration proceedings as to all or 
some of the claims if: 
A. 
There are separate agreements to arbitrate or separate 
arbi tration proceedings between the same persons or one of 
them is a party to a separate agreement to arbitrate or a 
separate arbitration proceeding with a 3rd person; 
B. 
The claims subject to the agreements to arbitrate arise 
in substantial part from the same transaction or series of 
related transactions; 
C. 
The existence of a common issue of law or fact creates 
the possibility of conflicting decisions ln the separate 
arbitration proceedings; and 
D. 
Prejudice resulting from a failure to consolidate is not 
outweighed by the risk of undue delay or prejudice to the 
rights of or hardship to parties opposing consolidation. 
2. 
Consolidation of some claims. 
The 
court may 
order 
consolidation of separate arbitration proceedings 
as 
to 
some 
claims 
and 
allow 
other 
claims 
to 
be 
resolved 
in 
separate 
arbitration proceedings. 
3. 
No consolidation if agreement prohibits. 
The court may 
not order consolidation of the claims of a party to an agreement 
to arbitrate if the agreement prohibits consolidation. 
Uniform Comment 
1. 
Multiparty 
disputes 
have 
long 
been 
a 
source 
of 
controversy in the enforcement of agreements to arbitrate. When 
conflict 
erupts 
ln 
complex 
transactions 
involving 
multiple 
contracts, it is rare for all parties to be signatories to a 
single arbitration agreement. In such cases, some parties may be 
bound to arbitrate while others are not; in other situations, 
there 
may 
be multiple arbitration agreements. 
Such realities 
raise the possibility that common issues of law or fact will be 
resolved in multiple fora, 
enhancing the overall expense 
of 
conflict 
resolution 
and 
leading 
to 
potentially 
inconsistent 
results. See III Macneil Treatise § 33.3.2. Such scenarios are 
particularly 
common 
in construction, 
insurance, 
maritime 
and 
sales transactions, but are not limited to those settings. See 
Thomas J. Stipanowich, Arbitration and the Multiparty Dispute: 
The Search for Workable Solutions, 72 Iowa L. Rev. 473, 481-82 
(1987) . 
Most state arbitration statutes, the FAA, 
and most arbitration 
agreements do not specifically address consolidated arbitration 
proceedings. In the common case where the parties have failed to 
address the issue in their arbitration agreements, 
some courts 
have 
ordered consolidated hearings 
while 
others 
have 
denied 
consolidation. In the interest of adjudicative efficiency and the 
avoidance of potentially conflicting results, courts in New York 
and a number of other States concluded that they have the power 
to direct consolidated arbitration proceedings involving common 
legal or factual issues. 
See County of Sullivan v. 
Edward L. 
Nezelek, Inc., 42 N.Y.2d 123, 
N.E.2d 72, 
N.Y.S.2d 371 
(1977); see also New England Energy v. Keystone Shipping Co., 855 
F.2d 1 (1st Cir. 1988), cert denied, 489 U.S. 1077 (1989); Litton 
Bionetics, Inc. v. Glen Constr. Co., 
Md. 
34, 437 A.2d 208 
(1981); Grover-Diamond Assoc. v. American Arbitration Ass' n, 297 
Minn. 
324, 
N.W.2d 787 
(1973); Po1shek v. Bergen Cty. Iron 
Works, 142 N.J. Super. 516, 362 A.2d 63 (Ch. Div. 1976); Exber v. 
Sletten Constr. Co., 558 P.2d 517 (Nev. 1976); Plaza Dev. Servo 
V. Joe Harden Builder, Inc., 294 S.C. 430, 365 S.E.2d 231 (S.C. 
Ct. App. 1988). 
A number of other courts have held that in the absence of an 
agreement by all parties to multiparty arbitration they do not 
have the power to order consolidation of arbitrations despite the 
presence of common legal or factual issues. See, e.g., Stop & 
Shop Co. 
v. Gilbane Bldg. Co., 
Mass. 
325, 
N.E.2d 429 
(1973); J. Brodie & Son, Inc. v. George A. Fuller Co., 16 Mich. 
App. 
137, 
N.W.2d 
(1969); 
Balfour, 
Guthrie 
& 
CO. 
V. 
Commercial Metals Co., 93 Wash. 2d 199, 607 P.2d 856 (1980). 
The 
split 
of 
authority 
regarding 
the 
power 
of 
courts 
to 
consolidate arbitration proceedings in the absence of contractual 
consolidation provisions extends to the federal sphere. In the 
absence 
of 
clear direction 
ln 
the 
FAA, 
courts 
have 
reached 
conflicting holdings. The current trend under the FAA disfavors 
court-ordered 
consolidation 
absent 
express 
agreement. 
See 
generally III Macneil Treatise §33.3; Glencore, Ltd. v. Schnitzer 
Steel Prod. Co., 189 F. 3d 264 (2nd Cir. 1999). However, a recent 
California appellate 
decision 
held 
that 
state 
law 
regarding 
consolidated arbitration was not preempted by federal arbitration 
law under the FAA. Blue Cross of Calif. v. Superior Ct., 67 Cal. 
App. 4th 42, 78 Cal. Rptr. 2d 779 (1998). 
2. A growing number of jurisdictions have enacted statutes 
empowering 
courts 
to 
address 
multiparty 
conflict 
through 
consolidation of proceedings or joinder of parties even in the 
absence 
of 
specific 
contractual 
provisions 
authorizing 
such 
procedures. 
See 
Cal. 
Civ. 
Proc. 
Code 
§1281.3 
(West 
1997) 
(consolidation); Ga. 
Code Ann. 
§ 9-9-6 
(1996) 
(consolidation); 
Mass. Gen. Laws Ann. ch. 251, § 
2A (West 1997) (consolidation); 
N.J. Stat. Ann. § 2A-23A-3 (West 1997) (consolidation); S.C. Code 
Ann. 
§ 
15-48-60 
(1996) 
(joinder); 
Utah Code 
Ann. 
§ 
78-31a-9 
(1996) (joinder). 
Some empirical studies also support court-ordered consolidation. 
In a 
survey of arbitrators in construction cases, 
Q., 
favored 
consolidated arbitrations 
involving all affected parties. 
See 
Dean B. 
Thomson, Arbitration Theory and Practice: 
A Survey of 
Construction Arbitrators, 23 Hofstra L. Rev. 137, 165-67 (1994). 
A similar survey of members of the ABA Forum on the Construction 
Industry found that 83% of nearly 1,000 responding practitioners 
also favored consolidation of arbitrations involving multiparty 
disputes. See Dean B. Thomson, The Forum's Survey on the Current 
and Proposed AlA A20l Dispute Resolution Provisions, 16 Constr. 
Law. 3, 5 (No.3, 1996). 
3. A provision in the RUAA specifically empowering courts to 
order consolidation in appropriate cases makes sense for several 
reasons. 
As 
in the 
judicial 
forum, 
consolidation effectuates 
efficiency in conflict resolution and avoidance of conflicting 
results. 
By agreeing to include an arbitration clause, parties 
have indicated that they wish their disputes to be resolved in 
such a manner. In many cases, moreover, a court may be the only 
practical 
forum 
wi thin 
which 
to 
effect 
consolidation. 
See 
Schenectady v. Schenectady Patrolmen's Benev. Ass'n, 138 A. D.2d 
882, 883, 526 N.Y.S.2d 259, 260 (1988). Furthermore, it is likely 
that ln many 
cases 
one 
or 
more 
parties, 
often non-drafting 
parties, will not have considered the impact of the arbitration 
clause 
on 
multiparty 
disputes. 
By 
establishing 
a 
default 
provision 
which 
permits 
consolidation 
(subject 
to 
var ious 
limitations) in the absence of a specific contractual provision, 
Section 10 encourages drafters to address the issue expressly and 
enhances the possibility that all parties will be 
on notice 
regarding the issue. 
Section 10 is an adaptation of consolidation provisions in the 
California and Georgia statutes. Cal. Civ. Proc. 
Code § 1281.3 
(West 1997); 
Ga. 
Code 
Ann. 
§ 
9-9-6 
(1996). 
It gives 
courts 
discretion to consolidate separate arbitration proceedings in the 
presence of multiparty disputes involving common issues of fact 
or law. 
Like other sections of the 
RUAA, 
however, 
the provision also 
embodies the fundamental principle of judicial respect for the 
preservation 
and 
enforcement 
of 
the 
terms 
of 
agreements 
to 
arbitrate. Thus, Section 10(c) recognizes that consolidation of a 
party's 
claims 
should 
not 
be 
ordered 
in 
contravention 
of 
provisions of arbitration agreements prohibiting consolidation. 
See also Section 4 (a). However, 
Section 10 is not intended to 
address the issue as to the validity of arbitration clauses ln 
the context of class-wide disputes. 
For cases concerning this 
issue, 
see, e.g., 
Lozada v. 
Dale Baker Oldsmobile, 
Inc., 
F.Supp. 
2d 
1087 
(W.D.Mich. 
2000) 
(finding 
an 
arbitration 
provision is unconscionable 
in part because it waives 
class 
remedies allowable under Truth in Lending Act ("TILA"), as well 
as certain declaratory and injunctive relief under federal and 
state consumer protection laws), 
on appeal to Sixth Circuit; 
Ramirez v. Circuit City Stores, 90 Cal. Rptr. 2d 916 (Cal. Ct. 
App. 1999) (finding arbitration clause in contract of employment 
voided 
as 
unconscionable, 
in part, 
because it would 
deprive 
arbitrator of authority to hear classwide claim), review granted 
and opinion superseded, 
P. 2d 137 
(Cal. 
2000); Powertel v. 
Bexley, 743 So. 2d 570 (Fla. Ct. App. 1999) (refusing to enforce 
arbitration clause 
as 
unconscionable 
in part because 
of its 
retroactive application to preexisting lawsuit and because one 
factor 
as 
to 
its 
substantive 
unconscionability 
was 
that it 
precluded 
the 
possibility 
of 
classwide 
relief); 
Jean 
R. 
Sternlight, As Mandatory Arbitration Meets the Class Action, Will 
the Class Action Survive?, 
Wm. 
& Mary L. 
Rev. 
(October, 
2000); but cf. Johnson v. West Suburban Bank, 225 F.3d 366, (3rd 
Cir. 
2000) 
(holding that neither the text nor the legislative 
history of TILA or the Electronic Funds Transfer Act 
("EFTA") 
indicate an inherent conflict between TILA or EFTA and the right 
to arbitrate even though plaintiffs cannot proceed under 
the 
class action provisions of these statutes); Thompson v. Illinois 
Title Loans, Inc., 2000 WL 45493 (N.D., Jan. 11, 2000) 
(same as 
to TILA claim); Sagal v. First USA Bank, N.A., 69 F.Supp. 2d 627 
(D. Del. 1999) (same), on appeal to Third Circuit; Zawikowski v. 
Beneficial Nat' 1 Bank, 1999 WL 35304 (N.D. Ill., Jan. 11, 1999) 
(same); Randolph v. Green Tree Fin. Corp., 991 F.Supp. 1410 (M.D. 
Ala. 
1997), rev'd on other grounds, 
F.2d 1149 (11th Cir. 
1999), cert. granted, 
S.Ct. 
1552 
(2000) 
(same); 
Lopez v. 
Plaza Fin. Co., 1996 WL 210073 (N.D. Ill. April 25, 1996) (same); 
Brown v. Surety Finance Service, Inc., 2000 U.S. Dist. LEXIS 5734 
(N.D. Ill. Mar. 
23, 
2000) 
(same); Meyers v. Univest Home Loan, 
Inc., 
1993 
WL 
307747 
(N.D. 
CaL, 
Aug. 
4, 
1993) 
(holding that 
claims of named-plaintiff asserted in class action under TILA and 
state consumer protection act must be arbitrated); 
Howard v. 
Klynveld Peat 
Marwick 
Goerderler, 
F.Supp. 
654, 
665, 
n.7 
(S.D.N.Y. 1997) ("A plaintiff *** who has agreed to arbitrate all 
claims arising out of her employment may not avoid arbitration by 
pursuing class claims. Such claims must be pursued in non-class 
arbi tration. "); 
Doctor's 
Assoc. , 
Inc. 
v. 
Hollingsworth, 
F.Supp. 
77, 
80-81 
(D. 
Conn. 
1996) 
(holding that class action 
contract 
claims 
brought 
by 
franchisees 
were 
subject 
to 
arbitration 
provision 
of 
franchising 
agreement 
requiring 
individual arbitrations); Erickson v. Painewebber, Inc., 1990 WL 
104152 (N.D. Ill., July 13, 1990) (holding that fraud claims of 
named-plaintiff asserted in class action must be arbitrated). 
Even in the absence of express prohibitions on consolidation, the 
legitimate expectations of contracting parties may 
limit the 
ability of courts to consolidate arbitration proceedings. Thus, a 
number of decisions have recognized the right of parties opposing 
consolidation to prove that consolidation would undermine their 
stated expectations, 
especially regarding arbitrator selection 
procedures. See Continental Energy Assoc. v. Asea Brown Boveri, 
Inc., 
A. 
D.2d 467, 
N.Y.S.2d 416 
(1993) 
(holding that 
denial of consolidation not an abuse of discretion where parties' 
two arbitration agreements differed substantially with respect to 
procedures for selecting arbitrators and manner in which award 
was to be rendered); Stewart Tenants Corp. v. Diesel Constr. Co., 
A. D.2d 895, 229 N.Y.S.2d 204 (1962) (refusing to consolidate 
arbitrations where one agreement required 
AAA 
tribunal, 
other 
called for arbitrator to be appointee of president of real estate 
board); but see Connecticut· Gen' 1 
Life Ins. 
Co. 
v. 
Sun Life 
Assurance Co. of Canada, 
F.3d 771 (7th Cir. 
2000) 
(noting 
that 
court 
deciding 
whether 
to 
consolidate 
arbitration 
proceedings 
should not insist that it be clear, 
rather than 
merely 
more 
likely 
than 
not, 
that 
the 
parties 
intended 
consolidation). Therefore, 
Section 10(a)(4) requires courts to 
consider proof that the potential prejudice resulting from 
a 
failure to consolidate is not outweighed by prejudice to the 
rights 
of 
parties 
to 
the 
arbitration 
proceeding 
opposing 
consolidation. Such rights would normally be deemed to include 
arbi trator selection procedures, standards for the admission of 
evidence and rendition of the award, and other express terms of 
the arbitration agreement. 
In some circumstances, 
however, 
the 
imposition on contractual expectations will be slight, 
and no 
impediment 
to 
consolidation: 
for 
example, 
if 
one 
agreement 
provides for arbitration in St. Paul and the other in adjoining 
Minneapolis, 
consolidated hearings 
in either city should not 
normally be deemed to violate a substantial right of a party. 
Section 10(a) (4) 
also requires courts to consider whether the 
potential prejudice resulting from a failure to consolidate is 
outweighed by "undue delay" or "hardship to the parties opposing 
consolidation." Such undue delay or hardship might result where, 
for example, one or more separate arbitration proceedings have 
already progressed to the hearing stage by the time the motion 
for consolidation is made. 
As the cases reveal, the mere desire to have one's dispute heard 
in a separate proceeding is not in and of itself the kind of 
proof sufficient to prevent consolidation. 
Vigo S.S. 
Corp. 
v. 
Marship Corp. of Monrovia, 
N.Y.2d 157, 162, 257 N.E.2d 624, 
626, 
N.Y.S.2d 165, 168 (1970), remittitur denied 27 N.Y.2d 
535, 261 N.E.2d 112, 312 N.Y.S.2d 1003, cert. denied 400 U.S. 819 
(1970); see also III Macneil Treatise § 33.3.2 (citing cases in 
which 
consolidation 
was 
ordered 
despite 
allegations 
that 
arbitrators might be confused because of the increased complexity 
of consolidated arbitration or that consolidation would impose 
additional economic burdens on the party opposing it). 
4. 
The 
language in Section 10(a)(1) 
regarding "separate 
agreement to arbitrate" and "separate arbitration proceedings" 
are 
intended to cover arbitration among 
both principals 
and 
third-party 
beneficiaries 
of 
either 
the 
same 
agreement 
to 
arbitrate or 
separate 
agreements, 
such 
as 
guarantees, 
which 
incorporate 
by 
reference 
the 
arbitration 
provisions 
in 
the 
underlying contract. See, e.g., Compania Espanola de Petroleos v. 
Nereus Shipping Co., 527 F.2d 966 (2d Cir. 1975), cert. denied, 
U.S. 936 (1976); but see United Kingdom v. Boeing Co., 988 
F.2d 68 (2d Cir. 1993). 
5. A party cannot appeal a lower court decision of an order 
granting or denying consolidation under Section 28, 
regarding 
appeals, because the policy behind Section 28(a)(1) and (2) is 
not 
to 
allow 
appeals 
of 
orders 
that 
result 
in 
delaying 
arbitration. 
Whether 
consolidation is ordered or denied, 
the 
arbitrations likely will continue 
either separately or in a 
consolidated proceeding -
and to allow appeals would delay the 
arbitration process. 
§8711. 
Appointment of arbitrator; service as neutral arbitrator 
1. 
Appointment. 
If the 
parties 
to 
an 
agreement 
to 
arbi trate agree on a method for appointing an arbitrator, that 
method must be followed, unless the method fails. 
If the parties 
have not agreed on a method, 
the agreed method fails or an 
arbi trator appointed fails or is unable to act and a successor 
has not been appointed, the court, on motion of a party to the 
arbi tration 
proceeding, 
shall 
appoint 
the 
arbitrator. 
An 
arbitrator so appointed has all the powers of an arbitrator 
designated in the agreement to arbitrate or appointed pursuant to 
the agreed method. 
2. 
Ineligible to serve as arbitrator. 
An individual who 
has a known, direct and material interest in the outcome of the 
arbitration proceeding or 
a 
known, 
existing 
and 
substantial 
relationship with a party may not serve as an arbitrator reguired 
by an agreement to be neutral. 
Uniform Comment 
1. Because Section 11 is a waivable provision under Section 
4(a), 
parties 
may 
choose 
their 
own 
method 
of 
selecting 
an 
arbitrator under 
Section ll(a). Parties oftentimes 
choose 
an 
arbitrator because of that person' s knowledge or experience or 
relationship to the parties. This is particularly the case with 
non-neutral arbitrators who are sometimes chosen because of their 
relationship to a party and may have a direct interest in the 
outcome. Section 11(b) does not apply to non-neutral arbitrators 
but only to neutral arbitrators. Moreover, because Section ll(b) 
is subject to the agreement of the parties, they may choose to 
have a person with the type of interest or relationship described 
in this subsection serve as a neutral arbitrator. 
2. The award granted by an arbitrator who fails to disclose 
the type of interest or relationship described in Section ll(b) 
is subject to a presumption of vacatur under Sections 12(e) and 
(a) (2). 
An arbitrator who discloses the type of interest or 
relationship described in Section ll(b) and who, despite a timely 
objection by a party, decides to serve is subject to vacatur 
under Sections 12(c) and 23(a)(2). 
§8712. 
Disclosure by arbitrator 
1.. Disclosure of interest, relationship. 
Before accepting 
appointment, 
an individual 
who 
is 
requested to 
serve 
as 
an 
arbitrator, after making a reasonable inquiry, shall disclose to 
all 
parties 
to 
the 
agreement 
to 
arbitrate 
and 
arbitration 
proceeding and to any other arbitrators any known facts that a 
reasonable 
person 
would 
consider 
likely 
to 
affect 
the 
impartiality of the arbitrator in the arbitration proceeding, 
including: 
A. 
A financial or personal interest in the outcome of the 
arbitration proceeding; and 
B. 
An existing or past relationship with any of the parties 
to the agreement to arbitrate or the arbitration proceeding, 
their counselor representatives, 
a 
witness 
or 
another 
arbitrator. 
2. Continuing obligation to disclose. 
An arbitrator has a 
continuing obligation to disclose to all parties to the agreement 
to 
arbitrate 
and 
arbitration 
proceeding 
and 
to 
any 
other 
arbitrators any facts that the arbitrator learns after accepting 
appointment that a 
reasonable person would consider likely to 
affect the impartiality of the arbitrator. 
3. 
Ground to vacate award. 
If an arbitrator discloses a 
fact required by subsection 1 or 2 to be disclosed and a party 
timely objects to the appointment or continued service of the 
arbitrator based upon the fact disclosed, the objection may be a 
ground under section 8723, subsection 1, paragraph B for vacating 
an award made by the arbitrator. 
4. 
Court may vacate award. 
If the arbitrator did not 
disclose a fact as required by subsection 1 or 2, upon timely 
objection by a party, the court under section 8723, subsection 1, 
paragraph B may vacate an award. 
5. 
Presumption 
of 
evident 
partiality. 
An 
arbitrator 
appointed as a neutral arbitrator who does not disclose a known, 
direct and material interest in the outcome of the arbitration 
proceeding or a known, existing and substantial relationship with 
a party is presumed to act with evident partiality under section 
8723, subsection 1, paragraph B. 
6. 
Substantial 
compliance. 
If 
the 
parties 
to 
an 
arbi tration proceeding agree to the procedures of an arbitration 
organization 
or 
any 
other 
procedures 
for 
challenges 
to 
arbitrators before an award is made, substantial compliance with 
those procedures is a condition precedent to a motion to vacate 
an 
award 
on 
that 
ground 
under 
section 
8723, 
subsection 
1, 
paragraph B. 
Uniform Comment 
1. The notion of decision making by independent neutrals is 
central to the arbitration process. The UAA and other legal and 
ethical norms reflect the principle that arbitrating parties have 
the right to be judged impartially and independently. III Macneil 
Treatise § 28.2.1. Thus, Section 12 (a) (4) of the UAA provides 
that an award may be vacated where "there was evident partiality 
by an arbitrator appointed as a neutral or corruption in any of 
the arbitrators or misconduct prejudicing the 
rights of 
any 
party." See RUAA Section 23(a)(2); 
FAA Section 10(a)(2). This 
basic 
tenet 
of 
procedural 
fairness 
assumes 
even 
greater 
significance in light of the strict limits on judicial review of 
arbitration awards. See Drinane v. State Farm Mut. Auto Ins. Co., 
Ill. 2d 207, 212, 606 N.E.2d 1181, 1183, 180 Ill. Dec. 104, 
(1992) 
("Because 
courts 
have 
given 
arbitration 
such 
a 
presumption of validity once the proceeding has begun, it is 
essential that the process by which the arbitrator is selected be 
certain as to the impartiality of the arbitrator."). 
The problem of arbitrator partiality is a difficult one because 
consensual 
arbitration 
involves 
a 
tension 
between 
abstract 
concepts of impartial justice and the notion that parties are 
entitled to a decision maker of their own choosing, including an 
expert with the biases and prejudices inherent in particular 
worldly 
experience. 
Arbitrating 
parties 
frequently 
choose 
arbitrators 
on 
the 
basis 
of 
prior professional 
or 
business 
associations, 
or 
pertinent 
commercial 
expertise. 
See, 
e.g., 
Morelite Constr. Corp. v. New York City Dist. Council Carpenters 
Benefit Funds, 748 F.2d 79 (2d Cir. 1984); National Union Fire 
Ins. Co. v. Holt Cargo Sys., Inc., 
F.Supp. 
2000 WL 
328802 (S.D.N.Y. March 28, 2000). The competing goals of party 
choice, desired expertise and impartiality must be balanced by 
giving parties "access to all information which might reasonably 
affect the arbitrator's partiality." Burlington N. 
R.R. 
Co. 
v. 
TUCO, 
Inc., 
S.W.2d 629,637 
(Tex. 
1997). 
Other 
factors 
favoring early resolution of the partiality issues by informed 
parties 
are 
legal 
and 
practical 
limitations 
on 
post-award 
judicial policing of such matters. 
Much of the law on the issue of arbitrator partiality stems from 
the seminal case of Commonwealth Coatings Corp. v. Continental 
Casualty Co., 393 U.S. 145 (1968), a decision under the FAA. 
In 
that case the Supreme Court held that an undisclosed business 
relationship 
between 
an 
arbitrator 
and 
one 
of 
the 
parties 
constituted "evident partiality" requiring vacating of the award. 
Members of the Court differed, however, 
on the standards for 
disclosure. Justice Black, writing for 
a 
four-judge plurality, 
concluded that disclosure of "any dealings that might create an 
impression of possible bias" or creating "even an appearance of 
bias" would amount to evident partiality. Id. at 149. Justice 
Whi te, in a concurrence joined by Justice Marshall, supported a 
more 
limited 
test 
which 
would 
require 
disclosure 
of 
"c\ 
substantial interest in a firm which has done more than trivial 
business with a party." Id. at 150. Three dissenting justices 
favored 
an 
approach 
under 
which 
an 
arbitrator's 
failure 
to 
disclose 
certain 
relationships 
established 
a 
rebuttable 
presumption of partiality. 
The split of opinion in Commonwealth Coatings is reflected In 
many subsequent decisions addressing motions to vacate awards on 
grounds of "evident partiality" under federal and state law. 
A 
number of decisions have applied tests akin to Justice Black's 
"appearance of bias" test. See, e.g" S.S. Co. v. Cook Indus., 
Inc., 495 F.2d 1260, 1263 (2d Cir. 1973) (applying FAA; failure 
to disclose relationships that "might create an impression of 
possible bias"). Some courts have introduced an objective element 
into 
the 
standard 
that 
is, 
viewing 
the 
facts 
from 
the 
standpoint 
of 
a 
reasonable 
person 
apprised 
of 
all 
the 
circumstances. 
See, 
e.g., 
Ceriale v. 
AMCO 
Ins. 
Co., 
Cal. 
App.4th 500, 55 Cal. Rptr. 2d 685 (1996) (finding that question 
is whether record reveals facts which might create an impression 
of possible bias in eyes of hypothetical, reasonable person). 
A greater number of other courts, mindful of the tradeoff between 
impartiality and expertise inherent in arbitration, have placed a 
higher burden on those seeking to vacate awards on grounds of 
arbitrator interests or relationships. See, e.g., Merit Ins. Co. 
v. Leatherby Ins. Co" 714 F.2d 673, 681 (7th Cir. 1983), cert. 
denied, 464 U.S. 1009, 104 S. Ct. 529, 78 L. Ed.2d 711, modified, 
F.2d 943 (7th Cir. 1984) (applying FAA; circumstances must be 
"powerfully suggestive of bias"); Artists & Craftsmen Builders, 
Ltd. 
v. 
Schapiro, 
A.D.2d 
265, 
N.Y.S.2d 
(1996) 
(stating 
that 
though 
award 
may 
be 
overturned 
appearance of bias or partiality, party seeking 
heavy burden and must show prejudice). 
on 
proof 
of 
to vacate has 
2. 
In 
view 
of 
the 
critical 
importance 
of 
arbitrator 
disclosure to party choice and perceptions of fairness and the 
need for more consistent standards to ensure expectations in this 
vital area, Section 12 sets forth affirmative requirements to 
assure that parties should access to all information that might 
reasonably 
affect 
the 
potential 
arbitrator's 
neutrality. 
A 
primary model for the disclosure standard in Section 12 is the 
AAAI ABA 
Code of Ethics for Arbitrators in Commercial Disputes 
(1977), 
which embodies the principle that "arbitrators should 
disclose the existence of any interests or relationships which 
are likely to affect their impartiality or which might reasonably 
create the appearance of partiality or bias." Canon II, p.6. 
These disclosure provisions are often cited by courts addressing 
disclosure issues, e. g., William C. 
Vick Constr. 
Co. 
v. North 
Carolina Farm Bureau Fed., 123 N.C. App. 97, 100-01, 472 S.E.2d 
346, 348 (1996), and have been formally adopted by at least one 
state court. See Safeco Ins. Co. of Am. v. Stariha, 346 N.W.2d 
663, 666 (Minn. Ct. App. 1984); see also Tex. Civ. Prac. 
& Rem. 
Code § 
172.056; 
for 
a 
more 
stringent arbitration disclosure 
statute, see Cal. Civ. 
Proc. 
Code §§ 1281.6,1281.9,1281.95, 
1297.121,1297.122 
(West. 
Supp. 
1998). 
Substantially 
similar 
language is contained in disclosure requirements of widely used 
securities arbitration rules. See, e.g., NASD Code of Arbitration 
Procedure § 10312 (1996). Many arbitrators are already familiar 
wi th these standards, which provide for disclosure of pertinent 
interests in the outcome of an arbitration and of relationships 
with parties, representatives, witnesses, and other arbitrators. 
The 
Drafting Committee 
decided to delete the 
requirement 
of 
disclosing "any" financial or personal interest in the outcome or 
"any" existing or past relationship and substituted the terms "a" 
financial or personal interest in the outcome or "an" existing or 
past relationship. 
The 
intent was 
not to include 
de minimis 
interests or relationships. For example, if an arbitrator owned a 
mutual fund which as part of a large portfolio of investments 
held some shares of stock in a corporation involved as a party in 
an 
arbitration, 
it might 
not 
be 
reasonable 
to 
expect 
the 
arbitrator to 
know of 
such investment and in any event the 
investment might be of such an insubstantial nature so as not to 
reasonably affect the impartiality of the arbitrator. 
3. The fundamental standard of Section 12(a) is an objective 
one: disclosure is required of facts that a 
reasonable person 
would consider likely to affect the arbitrator's impartiality in 
the arbitration proceeding. 
See 
ANR 
Coal 
Co. 
v. 
Cogentrix of 
North Carolina, Inc., 173 F. 3d 493 (4th Cir. 1999) (stating that 
relationship between arbitrator and a party is too insubstantial 
for 
"reasonable person" 
to 
conclude that there 
was 
improper 
partiality so as to vacate award under FAA); Beebe Med. Center, 
Inc. v. Insight Health Servs. Corp., 751 A.2d 426 (Del. Ch. 1999) 
(finding that an arbitrator's nondisclosure of a 
relationship 
wi th an attorney representing a party in arbitration matter 
1S 
substantial enough to create a 
"reasonable impression of bias" 
that requires vacatur of arbitration award). 
The 
"reasonable 
person" test is intended to make clear that the subjective views 
of the arbitrator or the parties are not controlling. However, 
parties may agree to higher or lower standards for disclosure 
under 
Section 4(b)(3) 
so 
long 
as 
they 
do 
not 
"unreasonably 
restrict" 
the 
right 
to 
disclosure. 
For 
instance, 
in 
labor 
arbi tration under a cOllective-bargaining agreement because the 
parties often interact with each other and arbitrators, and have 
personal relationships with each other and arbitrators, the Code 
of Professional Responsibility of Arbitrators of Labor-Management 
Disputes provides: "There should be no attempt to be secretive 
about such friendships or acquaintances but disclosure is not 
necessary unless some feature of a particular relationship might 
reasonably appear to impair impartiality." Section 2. B. 3. a. Thus 
a 
reasonable person in the field of labor arbitration may not 
expect personal, professional, or other past relationships to be 
disclosed. 
In other fields where parties do not have ongoing 
relationships, 
an arbitrator may be required to disclose such 
relationships. 
Section 
12(a) 
requires 
an 
arbitrator 
to 
make 
a 
"reasonable 
inquiry" prior to accepting an appointment as to any potential 
conflict of interests. The extent of this inquiry may depend upon 
the circumstances of the situation and the custom in a particular 
industry. For instance, an attorney in a law firm may be required 
to 
check 
with other attorneys 
in the 
firm 
to 
determine 
if 
acceptance of an appointment 
conflict of interest on the 
representation by an attorney 
parties in another matter. 
as an arbitrator would result in a 
part of that attorney because of 
in the same law firm of one of the 
Once an arbitrator has made a "reasonable inquiry" as required by 
Section 12(a), the arbitrator will be required to disclose only 
"known 
facts" 
that 
might 
affect 
impartiality. 
The 
term 
"knowledge" (which is intended to include "known") is defined in 
Section 1(4) to mean "actual knowledge." 
Section 12(b) is intended to make the disclosure requirement a 
continuing one and applies to conflicts that arise or become 
evident during the course of arbitration proceedings. Sections 
12(a) 
and 
(b) 
also provide to whom the arbitrator must make 
disclosure. 
The arbitrator must disclose facts required under 
Section 12(a) and (b) to the parties to the arbitration agreement 
and to the arbitration proceeding and to any other arbitrators. 
If the parties are represented by counselor other authorized 
persons, the arbitrators can make such representations to those 
individuals. 
4. 
Sections 12(c), 
(d), 
and 
(e) 
seek to accommodate the 
tensions 
between 
concepts 
of 
partiality 
and 
the 
need 
for 
experienced decision makers, as well as the policy of relative 
finality 
in arbitral 
awards. 
Therefore, 
in 
Section 
12(e) 
a 
neutral arbitrator's failure to disclose "a known, direct, and 
material interest in the 
outcome 
or 
a 
known, 
existing, 
and 
substantial 
relationship 
with 
a 
party," 
gives 
rise 
to 
a 
presumption of "evident partiality" under Section 23 (a) (2). Cf. 
Minn. Stat. Ann. § 572 .10 (2) (1998) (failure to disclose conflict 
of interest or material relationship is grounds for vacatur of 
award). A person who has this type of interest or relationship, 
in the absence of agreement by the parties, is not to serve as a 
neutral arbitrator under Section 11(b). Failure to disclose that 
type 
of interest or 
relationship creates 
the 
presumption of 
vacatur in Section 23(a)(2). In such cases, it is then the burden 
of the party defending the award to rebut the presumption by 
showing that the award was not tainted by the non-disclosure or 
there in fact was no prejudice. See, e.g., Drinane v. State Farm 
Mut. 
Auto Ins. Co., 153 Ill. 2d 207,214-16,606 N.E.2d 118L 
1184-85, 
Ill. Dec. 
104, 
-08 
(1992). 
A party-appointed, 
non-neutral arbitrator's failure to disclose would be covered 
under 
the 
corruption 
and 
misconduct 
provisions 
of 
Section 
23(a)(2) 
because in most 
cases it is presumed that 
a 
party 
arbitrator is intended to be partial to the side which appointed 
that person. 
Section 12(d) involves instances other than "a known, direct, and 
material interest in the outcome of the arbitration proceeding or 
a known, existing, and substantial relationship with a party" of 
an 
arbitrator's 
failure 
to 
disclose 
that 
do 
not 
create 
a 
rebuttable 
presumption 
of 
evident 
partiality 
by 
a 
neutral 
arbi trator but nevertheless may be a ground for vacatur under 
Section 23(a)(2). 
Section l2(c) 
covers 
instances where 
the arbitrator 
makes 
a 
required 
disclosure, 
a 
party 
objects 
to 
that 
arbitrator'S 
service, but the arbitrator overrules the objection and continues 
to 
serve. 
In 
the 
situation 
of 
a 
disclosed 
interest 
or 
relationship, the presumption of evident partiality in Section 
12(d) does not apply even if the disclosure involved "a known, 
direct, and material interest in the outcome of the arbitration 
proceeding or 
a 
known, 
existing, 
and substantial relationship 
with a party." 
Challenges based upon a lack of impartiality, including disclosed 
or undisclosed facts, interests, or relationships are subject to 
the developing case law under Section 23 (a) (2). Courts also are 
given wider latitude in deciding whether to vacate an award under 
Section 12(c) and (d) that is permissive in nature (an award 
"may" be vacated) rather than Section 23(a) which is mandatory (a 
court "shall" vacate an award). 
Section 12(c) 
and (d) also require a party to make 
a 
timely 
objection to 
the arbitrator's continued service in order 
to 
preserve grounds 
to vacate 
an 
award 
under 
Section 23(a)(2). 
Bossley v. Mariner Fin. Grp., Inc., 11 S.W.3d 349, 351 (Tex. Ct. 
App. 2000) ("A party who does not object to the selection of the 
arbi trator or to any alleged bias on the part of the arbitrator 
at the time of the hearing waives the right to complain."). Where 
the arbitrator makes the disclosure under Section 12(c) prior to 
the hearing, the party normally must object prior to the hearing; 
if the arbitrator fails to disclose a required fact under Section 
12(d), the party should object within a reasonable period after 
the person learns or should have learned of the undisclosed fact. 
5. 
Special 
problems 
are 
presented 
by tripartite panels 
involving non-neutral arbitrators -
that is, in situations such 
as where each of the arbitrating parties selects an arbitrator 
and 
a 
third, 
neutral arbitrator is jointly selected by 
the 
arbitrators chosen by the parties. 
See generally III Macneil 
Treatise § 28.4. In some such cases, it may be agreed that the 
arbitrators chosen by the parties are not regarded as "neutral" 
arbi trators, but are deemed to be predisposed toward the party 
which appointed them. See, e.g., AAA, Commercial Disp. Resolution 
Pro. 
R-12(b), 
19. 
However, 
in 
other 
situations 
even 
the 
arbitrators 
appointed 
by 
the 
parties 
may 
have 
a 
duty 
of 
neutrality on some or all issues. The integrity of the process 
demands that the non-neutral arbitrators chosen by the parties, 
like 
neutral 
arbitrators, 
disclose 
pertinent 
interests 
and 
relationships to all parties as well as other members of the 
arbi tration panel. It is particularly important for the neutral 
arbitrator to know the interest of the arbitrator selected by 
each of the parties if, for example, such non-neutral arbitrator 
is being paid on a contingent-fee basis. Thus, Section 12(a) and 
(b) 
apply to non-neutral arbitrators but under 
a 
"reasonable 
person" standard for someone in the position of a party and not a 
neutral arbitrator. Nasca v. State Farm Mut. Automobile Ins. Co., 
2000 WL 
374297 (Colo. Ct. App., April 13, 
2000) (finding that 
party-appointed 
arbitrator 
had 
duty 
to 
disclose 
substantial 
business relationship with the party). 
Section 12(c) and (d) also apply to non-neutral arbitrators but 
wi th a somewhat different effect than to a neutral arbitrator. 
For example, 
an undisclosed substantial relationship between a 
non-neutral arbitrator and the party appointing that arbitrator 
may be the subject of a motion to vacate under Section 23(a)(2). 
See Donegal Ins. Co. v. Longo, 415 Pa. Super. 628, 632-34, 
A.2d 466, 468-69 (1992) (stating that in view of attorney-client 
relationship 
between 
insured 
and 
the 
non-neutral 
arbitrator 
selected by that party, arbitration proceeding did not comport 
with procedural due process). However, an award would be vacated 
only where a non-neutral arbitrator fails to disclose information 
that amounts to "corruption" or to "misconduct prejudicing the 
rights of a party" under Section 23(a)(2)(B) and (C). The ground 
of "evident partiality" in Section 23(a)(2)(A) by its terms only 
applies to an arbitrator appointed as a neutral" and it would not 
make sense to apply this ground to a non-neutral arbitrator whose 
function in many arbitration settings is to be an advocate for 
one of the parties. 
It is also important to note that the disclosure requirements of 
Section 12 
are waivable under Section 4 (a) 
as to non-neutral 
arbitrators 
appointed 
by 
parties. 
In 
regard 
to 
neutral 
arbitrators, 
the parties 
under 
Section 4(b)(3) 
can vary 
the 
requirements of Section 12 so long as they do not "unreasonably 
restrict" the right to disclosure. 
6. Often parties agree to a 
procedure for challenges to 
arbitrators, 
such 
as 
a 
determination 
by 
an 
arbitration 
organization. Section 12 (f) conditions post-award resort to the 
courts 
under 
Section 
23(a)(2) 
upon 
compliance 
with 
such 
agreed-upon procedures. See, e.g., Bernstein v. Gramercy Mills, 
Inc., 
Mass. 
App. 
Ct. 403, 414, 
N.E.2d 231, 
(1983) 
(stating that 
AAA 
rule 
incorporated by arbitration agreement 
helps 
to 
describe 
level 
of non-disclosure that 
can 
lead 
to 
invalidation of award). 
§8713. 
Action by majority 
If there is more than one arbitrator, the powers of an 
arbitrator must be exercised by a majority of the arbitrators, 
but all of them shall conduct the hearing under section 8715, 
subsection 3. 
Uniform Comment 
Because this section is not included in Section 4(b) 
and 
(c), the requirements of majority action and that all arbitrators 
must conduct the hearing may be changed by the parties in their 
agreement to arbitrate. However, in the absence of an agreement 
to the contrary, a majority will determine claims and issues when 
there is a 
panel of arbitrators deciding a 
case and all the 
arbitrators on the panel must conduct the hearing. 
§8714. 
Immunity of arbitrator; competency to testify; attorney's 
fees and costs 
1. 
Immune 
from civil liability. 
An 
arbitrator 
or 
an 
arbitration organization acting in that capacity is immune from 
civil liability to the same extent as a judge of a court of this 
State acting in a judicial capacity. 
2. 
Supplements. 
The 
immunity afforded 
by this section 
supplements any immunity under other law. 
3. 
Failure to disclose. 
The failure of an arbitrator to 
make a disclosure reg;uired by section 8712 does not cause any 
loss of immunity under this section. 
4. 
Incompetent to testify, produce records. 
In a judicial, 
administrative 
or 
similar 
proceeding, 
an 
arbitrator 
or 
representative of an arbitration organization is not competent to 
testify and may not be reg;uired to produce records as to any 
statement, 
conduct, 
decision 
or 
ruling 
occurring 
during 
the 
arbi tration proceeding to the same extent as a judge of a court 
of this State acting in a judicial capacity. This subsection does 
not apply: 
A. 
To the extent necessary to determine the claim of an 
arbitrator, arbitration organization or representative of 
the 
arbitration 
organization 
against 
a 
party 
to 
the 
arbitration proceeding; or 
B. 
To 
a hearing on 
a 
motion to vacate an award under 
section 8723, subsection 1, paragraph A. or B if the movant 
establishes prima facie that a ground for vacating the award 
exists. 
5. 
Attorney's fees and expenses. 
If a person commences a 
civil action against an arbitrator, arbitration organization or 
representative of an arbitration organization arising from the 
services of the arbitrator, organization or representative or if 
a person seeks to. compel an arbitrator or a representative of an 
arbitration 
organization 
to 
testify 
or 
produce 
records 
in 
violation 
of 
subsection 
and 
the 
court 
decides 
that 
the 
arbitrator, 
arbitration organization or 
representative of 
the 
arbitration organization is immune from civil liability or that 
the arbitrator or 
representative of 
the organization is not 
competent to testify, the court shall award to the arbitrator, 
organization or 
representative 
reasonable attorney's 
fees 
and 
other reasonable expenses of litigation. 
Uniform Connent 
1. Section 14(a) regarding an arbitrator's immunity is based 
on the language of former Section 1280.1 of the California Code 
of Civil Procedure establishing immunity for arbitrators. Section 
1280.1 was enacted with an expiration date and was not renewed. 
See also Cal. Civ. Proc. 
Code § 1297.119 which gives the same 
protection 
to 
arbitrators 
in 
international 
arbitrations 
and 
unlike § 1280.1 has no expiration date and is still in effect. 
Three 
other 
States 
presently 
provide 
some 
form 
of 
arbitral 
immunity in their arbitration statutes. Fla. Stat. Ann. § 44.107 
(West 1995); N.C. Gen. Stat. § 7A-37.1 (1995); Utah Code Ann. § 
78-31b-4 (1994). 
Arbitral 
immunity 
has 
its 
origins 
in 
common 
law 
judicial 
immunity; most jurisdictions track the common law directly. The 
key to this identity is the "functional comparability" of the 
role of arbitrators and judges. See Butz v. Economou, 
U.S. 
478, 511-12 (1978) (establishing the principle that the extension 
of judicial-like immunity to non-judicial officials is properly 
based on the "functional comparability" of the individual's acts 
and judgments to the acts and judgments of judges); 
see also 
Corey v. 
New York Stock Exch" 
F.2d 1205, 
1209 (6th Cir. 
1982) 
(applying 
the 
"functional 
comparability" 
standard 
for 
immunity); 
Antoine v. 
Byers & Anderson, 
Inc., 
U.S. 
429, 
435-36 (1993) (holding that the key to the extension of judicial 
immunity to non-judicial officials is the "performance of the 
function 
of 
resolving 
disputes 
between 
parties 
or 
of 
authoritatively adjudicating private rights"). 
In 
addition to 
the grant 
of 
immunity 
from 
a 
civil action, 
arbitrators are also generally accorded immunity 
from process 
when subpoenaed or summoned to testify in a judicial proceeding 
in a case arising from their service as arbitrator. See, e.g., 
Andros Compania Maritima v. 
Marc Rich, 
F.2d 691 
(2d Cir. 
1978); Gramling v. 
Food Mach. 
& Chem. Corp., 151 F. 
Supp. 
(W.D. S.C. 1957). This full immunity from any civil proceedings 
is what is intended by the language in Section 14(a). 
2. 
Section 14(a) 
also provides 
the 
same 
immunity 
as is 
provided 
to 
an 
arbitrator 
to 
an 
arbitration 
organization. 
Extension of judicial immunity to those arbitration organizations 
is appropriate to the extent that they are acting "in certain 
roles and with certain responsibilities" that are comparable to 
those of a judge. Corey v. New York Stock Exch., 691 F.2d 1205, 
1209 
(6th 
Cir. 
1982). 
This 
immunity 
to 
neutral 
arbitration 
organizations is appropriate because the duties that they perform 
in 
administering the 
arbitration process 
are 
the 
functional 
equivalent 
of 
the 
roles 
and 
responsibilities 
of 
judges 
administering the adjudication process in a court of law. There 
is substantial precedent for this conclusion. 
See, e.g., 
New 
England Cleaning Serv., Inc. v. American Arbitration Ass'n, 199 
F.3d 542 (1st Cir. 1999); Honn v. National Ass'n of Sec. Dealers, 
Inc., 182 F.3d 1014 (8th Cir. 1999); Hawkins v. National Ass'n of 
Sec. 
Dealers, 
Inc., 
F.3d 
(5th Cir. 
1998); 
Olson v. 
National Ass'n of Sec. 
Dealers, 
Inc., 
F.3d 381 
(8th Cir. 
1996); Aerojet-General Corp. v. American Arbitration Ass' n, 478 
F.2d 248 (9th Cir. 1973); Cort v. American Arbitration Ass'n, 795 
F. 
Supp. 
(N.D. Cal. 1992); Boraks v. American Arbitration 
Ass'n, 
Mich.App. 
149, 
N.W.2d 
(1994); 
Candor 
v. 
American Arbitration Ass'n, 
Misc. 
2d 267,411 N.Y.S.2d 162 
(Sup. Ct., Tioga Cty. 1978). 
3. 
immunity 
immunity 
Section 14 (b) 
is 
intended 
granted 
makes clear that 
to 
supplement, 
arbitrators 
and 
the statutory grant of 
and 
not 
diminish, 
the 
neutral 
arbitration 
organizations under any judicial, statutory or other law. 
4. 
Section 
14(c) 
is 
included 
to 
insure 
that, 
if 
an 
arbi trator fails to make a disclosure required by Section 12, 
then the typical remedy is vacatur under Section 23 and not loss 
of arbitral immunity under Section 14. Such a result is similar 
to the effect of judicial immunity. 
5. Section 14(d) is based on the California Evidence Code, 
which 
provides 
that arbitrators 
shall 
not 
be 
"competent 
to 
testify * * * as to any statement, conduct, decision, or ruling 
occurring at or in conjunction with the prior proceeding." Cal. 
Evid. Code § 703.5. New York and New Jersey have adopted similar 
provisions that prohibit anyone from calling an arbitrator as a 
witness in a subsequent proceeding. N.J.R. Super. Ct. R. 4:21A-4; 
N.Y. 
Ct. 
R. 
§28.l2. Consistent with the protections afforded 
judges, Section 14 (d) is intended to protect an arbitrator or a 
representative of an arbitration organization from being required 
to testify or produce records from an arbitration proceeding in 
any civil action, administrative proceeding, or related matter. 
However, if the law of a given State would require a judge to 
testify in a proceeding for strong public-policy reasons, such as 
involvement in a criminal matter, an arbitrator or representative 
of an arbitration organization would likewise be 
required to 
testify. 
An exception is made in Section 14(d) (1) for situations such as 
when an arbitrator, arbitration organization, or representative 
of an arbitration organization asserts a claim against a party to 
the arbitration proceeding. For instance, an arbitrator may bring 
an action against one of the parties for nonpayment of fees to 
the 
arbitrator 
and 
may 
have 
to 
give 
testimony 
in order 
to 
recover. If, in an action by the arbitrator to recover a fee, the 
other party files a counterclaim against the arbitrator attacking 
the award, this section is intended to allow the arbitrator to 
testify as to the arbitrator's claim, but the arbitrator cannot 
be required to testify or produce records as to the party's 
counterclaim attacking the merits of the award. 
Otherwise the 
party 
can 
circumvent 
the 
general 
rule 
against 
requiring 
an 
arbitrator to provide testimony by forcing 
an action by the 
arbi trator by, for instance, not paying a contractually required 
fee for the arbitrator's services. 
Section 14(d)(2) recognizes that arbitrators who have engaged in 
corruption, 
fraud, 
partiality 
or 
other 
misconduct 
that 
are 
grounds to vacate an award under Sections 23(a)(1) and (2) may be 
required to give testimony so that a party will have evidence to 
prove such grounds. Such testimony or records from an arbitrator 
are only required after the objecting party makes a sufficient 
ini tial showing that such grounds exist. See Carolina-Virginia 
Fashion Exhibitors Inc. v. Gunter, 291 N.C. 208, 230 S.E.2d 380, 
(1976) 
(holding that where 
there is objective basis 
to 
believe that arbitrator misconduct has occurred, deposition of 
the arbitrator may be permitted and the deposition admitted ln 
action 
for 
vacatur). 
A party's 
allegation 
of 
these 
grounds 
without a showing of independent, objective evidence should be 
insufficient to 
require 
an arbitrator to testify or 
produce 
records from the arbitration proceeding. 
6. Section l4(e) 
1S intended to promote arbitral immunity. 
By definition, almost all suits against arbitrators, arbitration 
organizations, or representatives of an arbitration organization 
arising out of the good-faith discharge of arbitral powers are 
frivolous because of the breadth of their respective immunity. 
Spurious lawsuits against arbitrators, arbitration organizations, 
and representatives of an arbitration organization or involvement 
in 
collateral 
judicial 
or 
administrative 
proceedings 
deter 
individuals 
and entities from serving in such capacities 
and 
thereby 
harm 
the 
arbitration 
process 
because 
of 
the 
costs 
involved in defending even frivolous actions. Parties considering 
such litigation should be discouraged by the prospect of paying 
the 
litigation 
expenses 
of 
the 
arbitrator, 
arbitration 
organizations, or representatives of an arbitration organization. 
When 
they 
are 
not, 
the 
statute 
enables 
the 
arbitrators, 
arbitration organizations, or representatives of an arbitration 
organization to recover their litigation expenses and not to lose 
their fee and incur other expenses in the defense of a frivolous 
lawsuit. The terms "other reasonable expenses of litigation" are 
intended to include both actions at the trial-court level and on 
appeal. 
7. 
In Section 14 (d) (2) 
only a 
"party"to the arbitration 
proceeding would file a motion to vacate under Section 23(a)(1) 
or (2). 
However, 
the term "person" is used in Section 14 (e) 
because a third party, i. e., a person who is not party to the 
arbitration agreement or the arbitration proceeding, might bring 
an 
action against 
an 
arbitrator. 
For 
instance, 
in multiple 
arbi tration 
proceedings 
with 
subcontractors 
filing 
separate 
arbitration claims against general contractor X, Arbitrator A may 
make 
an 
award 
in 
a 
case 
between general 
contractor 
X 
and 
subcontractor 
Y. 
In 
a 
later 
arbitration 
proceeding 
between 
general contractor X and subcontractor Z before Arbitrator B, 
Z 
may attempt to subpoena testimony or records from Arbitrator A in 
the 
prior 
proceeding. 
Another 
possible 
scenario 
occurs 
when 
Arbitrator A issues a subpoena to T, a third party, and T decides 
to bring an action against Arbitrator A. 
In these instances, 
Arbitrator A should be able to assert arbitral 
immunity and 
recover costs and attorney's fees under Section 14 (e) against Z 
or T who would be "persons" but not necessarily "parties" to the 
arbitration proceeding between X and Y. 
8. 
Section 14 
does not grant arbitrators or arbitration 
organizations immunity from criminal liability arising from their 
conduct in their arbitral or administrative roles. This comports 
with the sparse 
common 
law addressing arbitral immunity 
from 
criminal liability. 
See, 
e.g., 
Cahn v. 
ILGWU, 
F.2d 113, 
114-15 (3d Cir. 1962); Babylon Milk & Cream Co. v. Horowitz, 151 
N.Y.S.2d 221 (N.Y. Sup. Ct. 1956). 
The 
provision 
also 
draws 
no 
distinction 
between 
neutral 
arbi trators and advocate arbitrators. Both types of arbitrators 
are covered by this provision. 
§8715. Arbitration process 
1. 
Manner. 
An arbitrator may conduct an arbitration in a 
manner 
the 
arbitrator 
considers 
appropriate 
for 
a 
fair 
and 
expeditious 
disposition 
of 
the 
proceeding. 
The 
authority 
conferred 
upon 
the 
arbitrator 
includes 
the 
power 
to 
hold 
conferences with the parties to the arbitration proceeding before 
the 
hearing 
and, 
among 
other 
matters, 
determine 
the 
admissibility, relevance, materiality and weight of any evidence. 
2. 
Summary disposition. 
An arbitrator may decide a request 
for summary disposition of a claim or particular issue: 
A. 
If all interested parties agree; or 
B. 
Upon reguest of one party to the arbitration proceeding 
if that party gives notice to all other parties to the 
proceeding 
and 
the 
other 
parties 
have 
a 
reasonable 
opportunity to respond. 
3. 
Hearing. 
If 
an 
arbitrator 
orders 
a 
hearing, 
the 
arbitrator shall set a time and place and give notice of the 
hearing not less than 5 days before the hearing begins. 
Unless a 
party to the arbitration proceeding makes an objection to lack or 
insufficiency of notice not later than the beginning of 
the 
hearing, 
the 
party's 
appearance 
at 
the 
hearing 
waives 
the 
objection. 
Upon reguest of a party to the arbitration proceeding 
and 
for 
good 
cause 
shown, 
or 
upon 
the 
arbitrator's 
own 
initiative, the arbitrator may adjourn the hearing from time to 
time as necessary but may not postpone the hearing to a time 
later than that fixed by the agreement to arbitrate for making 
the 
award 
unless 
the 
parties 
to 
the 
arbitration proceeding 
consent to a later date. 
The arbitrator may hear and decide the 
controversy upon the evidence produced although a party who was 
duly notified of the arbitration proceeding did not appear. 
The 
court, 
on reguest, 
may direct the arbitrator to conduct the 
hearing promptly and render a timely decision. 
4. 
Rights at hearing. 
At a hearing under subsection 3, a 
party to the arbitration proceeding has aright to be heard, to 
present evidence material to the controversy and to cross-examine 
witnesses appearing at the hearing. 
5. 
Replacement arbitrator. 
If an arbitrator ceases or is 
unable to act during the arbitration proceeding, 
a 
replacement 
arbi trator must be appointed in accordance with section 8711 to 
continue the proceeding and to resolve the controversy. 
Uniform CODBllent 
1. Section 15 is a default provision and under Section 4(a) 
is subject to the agreement of the parties. Section l5(a) is 
intended to give an arbitrator wide latitude in conducting an 
arbi tration subj ect to the parties' agreement and to determine 
what evidence should be considered. It should be noted that the 
rules of evidence are inapplicable in an arbitration proceeding 
except that an arbitrator's refusal to consider evidence material 
to the controversy that substantially prejUdices the rights of a 
party is a ground for vacatur under Section 23(a)(3). See Comment 
to this section. 
2. As the use of arbitration increases, there are more cases 
that involve complex issues. In such cases arbitrators are often 
involved in numerous prehearing matters involving conferences, 
motions, 
subpoenas, 
and other preliminary issues. Al though the 
present UAA makes no specific provision for arbitrators to hold 
prehearing 
conferences 
or 
to 
rule 
on 
preliminary 
matters, 
arbitrators probably have the inherent authority to perform such 
tasks. 
Numerous 
cases 
have 
concluded 
that 
in 
arbitration 
proceedings, procedural matters are within the province of the 
arbitrators. Stop 
& Shop Cos. v. Gilbane Bldg. Co., 
Mass. 
325, 
N.E.2d 
(1973); 
Gozdor 
v. 
Detroit 
Auto. 
Inter-Insurance 
Exchange, 
Mich. 
App. 
49, 
N.W.2d 
(1974); Upper Bucks Cnty. 
Area Vocational-Technical Sch. Joint 
Comm. v. Upper Bucks Cnty. Vocational Technical Sch. Educ. Ass'n, 
Pa.Cmnwlth. 463, 497 A.2d 943 (1985). 
Additionally, 
many 
arbitration organizations 
whose 
rules 
may 
govern particular arbitration proceedings provide for prehearing 
conferences and the ruling on preliminary matters by arbitrators. 
See, e.g., AAA Commercial Arb. R.-10; AAA Securities Arb. R. 10; 
AAA 
Construction 
Indus. 
Arb. 
R. 
10; 
AAA 
Ntn'l 
Rules 
for 
Resolution of Employment Disputes R. 8; National Arb. Forum Code 
of Pro. R. 24, 31; NASD Code of Arb. Proc. §32(d). 
Section l5(a) is intended to allow arbitrators broad powers to 
manage 
the 
arbitration 
process 
both 
before 
and 
during 
the 
hearing. This section makes the authority of arbitrators to hold 
prehearing 
conferences 
explicit 
and 
is 
meant 
to 
provide 
arbitrators with the authority in appropriate cases to require 
parties to clarify issues, stipulate matters, identify witnesses, 
provide 
summaries 
of 
testimony, 
to 
allow 
discovery, 
and 
to 
resolve preliminary matters. However, it is not the intent of 
Section 15(a) to encourage either extensive discovery or a form 
of motion practice. While such methods as discovery or prehearing 
conferences may be appropriate in some cases, these should only 
be 
used 
where 
they 
provide 
"for 
a 
fair 
and 
expeditious 
disposition 
of 
the 
[arbitration] 
proceeding." 
The 
arbitrator 
should keep in mind the goals of an expeditious, less costly, and 
efficient procedure. See also RUAA Section 17. 
3. Presently the UAA has no provision dealing with whether 
to 
allow 
an 
arbitrator 
to 
grant 
a 
request 
for 
summary 
disposition. 
A number of courts have upheld the authority of 
arbitrators to decide cases or issues on such requests without an 
evidentiary hearing but have been cautious in their support of 
such holdings. Intercarbon Bermuda, Ltd. v. Cal tex Trading and 
Transp. 
Corp., 
F.R.D. 
(S.D.N.Y. 
1993) 
(confirming 
a 
summary 
adjudication 
by 
an 
arbitrator 
based 
on 
documentary 
evidence but expressed reservations about deciding arbitration 
cases without an evidentiary hearing); Schlessinger v. Rosenfeld, 
Meyer & Susman, 40 Cal. App.4th 1096, 47 Cal. Rptr. 2d 650 (1995) 
(upholding arbitrator's award based on a summary adjudication but 
cautioning 
that 
the 
appropriateness 
of 
such 
summary 
action 
depends upon whether the party opposing a summary motion is given 
a fair opportunity to present its position); Stifler v. Seymour 
Weiner, 
Md. 
App. 
19, 
A.2d 
(1985) 
(finding that 
dispositive 
motion 
is 
appropriate 
on 
issue 
of 
statute 
of 
limi tations); Pegasus Constr. 
Corp. 
v. 
Turner Constr. Co., 
Wash. 
App. 
744, 
P.2d 
1200 
(1997) 
(concluding that full 
hearing 
of 
all 
evidence 
regarding 
merits 
of 
a 
claim 
is 
unnecessary where decision can be made on basis of motion to 
dismiss); but see Prudential Sec., Inc. v. Dalton, 929 F. Supp. 
1411 (N.D. Okla. 1996) 
(vacating arbitration award and finding 
that the arbitration panel was guilty of misconduct and exceeded 
its powers in refusing to hear pertinent evidence by deciding 
case without a hearing). Thus, although some courts have affirmed 
arbi trators who have made a summary disposition of a case, the 
opinions indicate both a hesitancy to endorse such an approach on 
a broad basis and a closer judicial scrutiny of the arbitrator's 
rulings. 
Section 
15(b) 
is 
intended 
to 
allow arbitrators 
to 
decide 
a 
request for summary disposition but only after a party requesting 
summary disposition gives appropriate notice and opposing parties 
have a reasonable opportunity to respond. The language in Section 
15(b) is based upon Rule 16 of JAMS 
Comprehensive Arbitration 
Rules 
and 
Procedures. 
In 
the arbitration context, 
the 
terms 
"request for summary disposition" are preferable to "motions for 
summary judgment" or "motions to strike or dismiss for failure to 
state 
a 
claim." 
The 
latter 
terms, 
which 
are 
used 
in civil 
litigation, 
usually 
refer 
to 
situations 
where 
there 
are 
no 
genuine issues of material fact in dispute and a case can be 
determined 
as 
a 
matter 
of 
law. 
In 
most 
arbitrations, 
the 
arbitrators are not required to make rulings only as a "matter of 
law." 
As 
discussed in the 
Comment 
to Section 23 
on vacatur, 
numerous courts have held that arbitrators are not bound by rules 
of law and their awards generally cannot be overturned for errors 
of law. Because of this, the terms "summary judgment" or "failure 
to state 
a 
claim" 
are misleading 
and 
the 
language 
"summary 
disposition" used in the JAMS rules is more applicable. 
4. Section 15 (c) allows an arbitrator to "hear and decide 
the controversy upon the evidence produced." The general rule in 
arbitration is that the rules of evidence need not be observed. 
III 
Macneil 
Treatise 
§ 
35.1.2.1; 
Cal. 
Civ. 
Proc. 
Code 
§ 
1282.2(d); AAA Commercial Arb. R-33; Center for Public Resources, 
Rules 
for Non-Administered Arb. 
of Business Disp. 
R. 
11. 
It 
should 
be 
noted 
that 
an 
arbitrator's 
refusal 
"to 
consider 
evidence material to the controversy" is one of the grounds for 
which 
a 
court may vacate an arbitration award 
under Section 
23(a)(3). However, courts have determined that arbitrators have 
broad discretion as to what evidence they will consider. Cold 
Mountain Builders v. Lewis, 746 A.2d 921 (Me. 2000). 
§8716. 
Representation by laxyer 
A party to an arbitration proceeding may be represented by a 
lawyer. 
Uniform COlNJIent 
1. The Drafting Committee considered but rejected a proposal 
to add "or 
expressed 
especially 
advocates. 
any other person" after "an attorney." A concern was 
about 
incompetent 
and 
unscrupulous 
individuals, 
in securities arbitration, who hold themselves out as 
2. 
This 
section 
is 
not 
intended 
to 
preclude, 
where 
authorized by law, representation in an arbitration proceeding by 
individuals who are not licensed to practice law either generally 
or in the jurisdiction in which the arbitration is held. 
3. Section 4(b)(4) provides that a waiver of the right to be 
represented 
by 
an 
attorney 
under 
Section 
prior 
to 
the 
initiation of 
an 
arbitration proceeding 
under 
Section 
is 
ineffective, but an employer and a labor organization may waive 
the right to representation by an attorney in a labor arbitration. 
§8717. 
Witnesses; subpoenas; depositions; discovery 
1. 
Sub.poenas. 
An arbitrator may issue a subpoena for the 
attendance of a witness and for the production of records and 
other evidence at any hearing and 
may 
administer oaths. 
A 
subpoena must be served in the manner for service of subpoenas in 
a civil action and, upon motion to the court by a party to the 
arbitration proceeding or the arbitrator, enforced in the manner 
for enforcement of subpoenas in a civil action. 
2. 
Depositions. 
In order to make the proceedings fair, 
expeditious and cost effective, upon request of a party to or a 
witness in an arbitration proceeding, an arbitrator may permit a 
deposition of any witness to be taken for use as evidence at the 
hearing, including a witness who can not be subpoenaed for or is 
unable to attend a hearing. 
The arbitrator shall determine the 
conditions under which the deposition is taken. 
3. 
Discovery. 
An 
arbitrator 
may 
permit 
discovery 
the 
arbitrator decides is appropriate 
~n the circumstances, taking 
into 
account 
the 
needs 
of 
the 
parties 
to 
the 
arbitration 
proceeding and other affected persons and the desirability of 
making the proceeding fair, expeditious and cost effective. 
4. 
Compliance. 
If an arbitrator permits discovery under 
subsection 3, the arbitrator may order a party to the arbitration 
proceeding 
to 
comply 
with 
the 
arbitrator's discovery-related 
orders, issue subpoenas for the attendance of a witness and for 
the production of records 
and other evidence at a 
discovery 
proceeding and take action against a noncomplying party to the 
extent a court could if the controversy were the subject of a 
civil action in this State. 
5. 
Protective order. 
An arbitrator may issue a protective 
order 
to 
prevent 
the 
disclosure 
of 
privileged 
information, 
confidential information, 
trade secrets 
and other information 
protected from disclosure to the extent a court could if the 
controversy were the subject of a civil action in this State. 
6. 
Witness laws and fees apply. 
All 
laws compelling a 
person under subpoena to testify and all fees for attending a 
judicial proceeding, a deposition or a discovery proceeding as a 
witness apply to an arbitration proceeding as if the controversy 
were the subject of a civil action in this State. 
7. 
Enforcement. 
The 
court 
may 
enforce 
a 
subpoena 
or 
discovery-related order for the attendance of a witness within 
this State and for the production of records and other evidence 
issued 
by 
an 
arbitrator 
in 
connection 
with 
an 
arbitration 
proceeding in another State upon conditions determined by the 
court so as to make the arbitration proceeding fair, expeditious 
and cost effective. 
A subpoena or discovery-related order issued 
by an arbitrator in another state must be served in the manner 
provided by law for service of subpoenas in a civil action in 
this State and, 
upon motion to the court by 
a party to the 
arbitration proceeding or the arbitrator, enforced in the manner 
provided by law for enforcement of subpoenas in a civil action in 
this State. 
Uniform Comment 
1. 
Presently, 
UAA 
Section 7 provides an arbitrator with 
subpoena authority only to require the attendance of witnesses 
and production of documents at the hearing (RUAA Section 17 (a) ) 
or to depose a witness who is unable to attend a hearing (RUAA 
Section 17(b». Section 17(b) allows an arbitrator to permit a 
hearing deposition only when such deposition will insure that the 
proceeding 
is 
"fair, 
expeditious, 
and 
cost effective." 
This 
standard is also required in Section 17(c) concerning prehearing 
discovery 
and in Section 17(g) 
regarding the enforcement of 
subpoenas or discovery orders by out-of-state arbitrators. 
Section 17(a) and (b) are not waivable under Section 4(b) because 
they go to the inherent power of an arbitrator to provide a fair 
hearing by insuring that witnesses and records will be available 
at an arbitration proceeding. The other subsections of Section 
17, 
including whether 
to 
allow prehearing discovery, 
can 
be 
waived or varied by agreement of the parties under Section 4(a). 
2. The authority in UAA Section 7 which is limited only to 
subpoenas and depositions for an arbitration hearing has caused 
some courts to conclude that "pretrial discovery is not available 
under our present statutes for arbitration." Rippe v. West Am. 
Ins. Co., 1993 WL 512547 (Conn. Super. Ct., Dec. 2, 1993); see 
also Burton v. Bush, 614 F.2d 389 (4th Cir. 1980) (stating that 
party 
to 
arbitration 
contract 
had 
no 
right 
to 
prehearing 
discovery). 
Others 
require 
a 
showing 
of 
extraordinary 
circumstances 
before 
allowing 
discovery. 
See, 
e.g., 
In 
re 
Deiulemar 
di 
Navigazione, 
F.R.D. 
(E.D. 
La. 
1994); 
Oriental Commercial 
& Shipping Co. v. Rosseel, 
F.R.D. 
(S.D.N.Y. 1989). Most courts have allowed discovery only at the 
discretion of the arbitrator. See, e. g., Stanton v. PaineWebber 
Jackson 
& Curtis, 
Inc., 
F. 
Supp 
1241 
(S.D. 
Fla. 
1988); 
Transwestern Pipeline Co. v. J.E. Blackburn, 831 S.W.2d 72 (Tex. 
Ct. 
App. 
1992). 
The 
few state arbitration statutes that have 
addressed the matter of discovery also leave these issues to the 
discretion of the arbitrator. Massachusetts -
Mass. 
Gen. 
Laws. 
Ann. 
ch.251, § 7(e) 
(providing that only the arbitrators can 
enforce a request for production of documents and entry upon land 
for inspection and other purposes); Texas -
Tex. Civ. Prac. 
& 
Rem. 
Code Ann. § 171.007(b) (stating that arbitrator may allow 
deposition of adverse witness for discovery purposes); Utah 
Utah Code Ann. § 78-31a-8 (providing that arbitrators may order 
discovery in their discretion). 
Most 
commentators 
and 
courts 
conclude 
that 
extensive 
discovery, 
as 
allowed 
in 
civil 
litigation, 
eliminates the main advantages of arbitration in 
terms of cost, speed and efficiency. 
3. 
The approach to discovery 
~n Section 17 (c) 
~s modeled 
after 
the 
Center 
for 
Public 
Resources 
(CPR) 
Rules 
for 
Non-Administered Arbitration of Business Disputes, 
R. 
and 
United Nations Commission on International Trade Law (UNCIRTAL) 
Arbitration Rules, 
Arts. 
24(2), 
26. 
The 
language follows 
the 
majority approach under the case law of the UAA and FAA which 
provides that, unless the contract specifies to the contrary, 
discretion rests with the arbitrators whether to allow discovery. 
The discovery procedure in Section 17 (c) is intended to aid the 
arbitration process 
and ensure 
an expeditious, 
efficient and 
informed arbitration, while adequately protecting the rights of 
the parties. Because Section 17 (c) is waivable under Section 4 
(a), the provision is intended to encourage parties to negotiate 
their own discovery procedures. 
Section 17(d) establishes the 
authority of the arbitrator to oversee the prehearing process and 
enforce discovery-related orders in the 
same manner as would 
occur in a civil action, thereby minimizing the involvement of 
(and resort of the parties to) the courts during the arbi tral 
discovery process. 
At the same time, it should be clear that in many arbitrations 
discovery is unnecessary and that the discovery contemplated by 
Section l7(c) and (d) is not coextensive with that which occurs 
in the course of civil litigation under federal or state rules of 
civil procedure. Although Section l7(c) allows an arbitrator to 
permit 
discovery 
so 
that 
parties 
can 
obtain 
necessary 
information, 
the 
intent 
of 
the 
language 
is 
to 
limit 
that 
discovery by considerations of fairness, efficiency, 
and cost. 
Because Section l7(c) 
is subject to the parties' arbitration 
agreement, they can decide to eliminate or limit discovery as 
best suits their needs. However, the default standard of Section 
17(c) 
is 
meant 
to 
discourage 
most 
forms 
of 
discovery 
in 
arbitration. 
4. 
The 
simplified, 
straightforward approach to discovery 
reflected in Section 17(c)-(e) is premised on the affirmative 
duty of the parties to cooperate in the prompt and efficient 
completion of discovery. The standard for decision in particular 
cases is left to 
the arbitrator. 
The 
intent of Section 17, 
similar 
to 
Section 
8(b) 
which 
allows 
arbitrators 
to 
issue 
provisional 
remedies, 
is 
to grant arbitrators 
the 
power 
and 
flexibility to ensure that the discovery process is fair and 
expeditious. 
5. In Section 17 most of the references involve "parties to 
the 
arbitration 
proceeding. " 
However, 
sometimes 
arbitrations 
involve outside, 
third parties 
who 
may 
be 
required 
to 
give 
testimony or produce documents. Section 17 (c) provides that the 
arbitrator should take the interests of such "affected persons" 
into account in determining whether and to what extent discovery 
is appropriate. 
Section l7(b) 
has 
been broadened 
so 
that 
a 
"wi tness" who is not a party can request the arbitrator to allow 
that person's 
testimony 
to 
be 
presented at 
the 
hearing 
by 
deposition if that person is unable to attend the hearing. 
6. 
Section l7(d) explicitly states that if an arbitrator 
allows 
discovery, 
the arbitrator has 
the authority to 
issue 
subpoenas for a discovery proceeding such as a deposition. This 
issue 
has 
become 
particularly important 
as 
a 
result of 
the 
holding in COMSAT Corp. v. National Science Foundation, 190 F. 3d 
(4th Cir. 1999), in which the Fourth Circuit Court of Appeals 
found that, under language in the FAA similar to that in Section 
of the UAA, arbitrators did not have power to issue subpoenas 
to non-parties to produce materials prior to the arbitration 
hearing. 
This holding is contrary to that of three federal 
district court opinions under the FAA that have enforced arbitral 
subpoenas for prehearing discovery so that arbitrators could make 
a full and fair determination. 
Amgen, 
Inc. v. 
Kidney Ctr. of 
Delaware County, 
F. 
Supp. 
(N.D. 
Ill. 1995); 
Meadows 
Indemnity Co. 
v. 
Nutmeg Ins. 
Co., 
F.R.D. 
(M.D. 
Tenn. 
1994); Stanton v. Paine Webber Jackson & Curtis, Inc., 685 F. 
Supp. 1241 (S.D. Fla. 1988). However, in Integrity Insurance Co. 
v. American Centennial Insurance Co., 885 F. Supp. 69 (S.D. N.Y. 
1995), the court enforced a subpoena for documents of a nonparty 
but refused enforcement of a 
subpoena to depose that person 
because to do so would require the person to appear twice-once 
for the hearing and once for the deposition. 
Because of the 
unclear 
case 
law, 
Section 
(d) 
specifically 
states 
that 
arbi trators have subpoena authority for discovery matters under 
the RUAA. 
7. Section l7(f) has been broadened to include witness fees 
for attending non-hearing depositions or discovery proceedings 
and indicates that the 
same rules in civil actions apply to 
arbitration proceedings for compelling a person under subpoena to 
testify and for compelling the payment of witness fees. 
8. 
Third parties. It 
1S 
clear 
from 
the 
case 
law that 
arbitrators have the power under the UAA (Section 7) and the FAA 
(Section 7) to issue orders, such as subpoenas, to non-parties 
whose information may be necessary for a full and fair hearing. 
Amgen, Inc. v. Kidney Ctr. of Delaware County, Ltd., 879 F. Supp. 
(N.D. Ill. 1995) (holding that arbitrator had the power under 
FAA to subpoena a third party to produce documents and to testify 
at a deposition); Meadows 
Indem. 
Co. v. Nutmeg Ins. Co., 
F.R.D. 42 (M.D. Tenn. 1994) (holding that because the burden was 
minimal, the nonparty would have to produce documents pursuant to 
arbitrator's subpoena under FAA); Stanton v. Paine Webber Jackson 
& Curtis, Inc., 685 F. Supp. 
1241 (S.D. Fla. 1988) 
(upholding 
subpoena issued by arbitrator under 
FAA 
that nonparties must 
appear at prehearing conference and arbitration hearing); Drivers 
Local Union No. 639 v. Seagram Sales Corp., 531 F. Supp. 364, 366 
(D.D.C. 
1981) 
("the Uniform Arbitration Act provides for the 
issuance of subpoenas by an arbitrator to non-party witnesses at 
an arbitration proceeding, 
to 
compel 
their testimony or 
the 
production of documents"); 
United Elec. 
Workers Local 
v. 
Schmitz, 
N.W.2d 
(Iowa 1998) 
(holding that that 
Iowa 
Arbitration Act confers on arbitrators the power to subpoena 
nonparty witnesses); but see COMSAT Corp. v. National Science 
Foundations, 
supra; Integrity Ins. 
Co. 
v. 
American Centennial 
Ins. 
Co., 
~. Some 
state arbitration 
laws 
broadly 
allow 
arbitrators to enforce subpoenas for discovery purposes the same 
as in a civil proceeding which can be interpreted to include 
third parties. Kan. Stat. Ann. § 5-407; Cal. Civ. Proc. Code § 
1283.05(d); Tex. Civ. Prac. & Rem. Code Ann. § 17l.007(b); Utah 
Code Ann. § 78-31a-8. 
Presently under the 
UAA 
and the 
FAA 
the courts have allowed 
non-parties to challenge the propriety of such subpoenas or other 
discovery-related orders 
of arbitrators. 
See, 
e.g., 
Integrity 
Ins. 
Co. 
v. 
American Centennial Ins. 
Co., 
supra. It must be 
remembered that such orders by arbitrators, like those issued by 
administrative agencies and unlike those issued by courts, are 
not 
self-enforcing. 
Thus, 
a 
nonparty 
who 
disagrees 
with 
a 
subpoena or other order issued by an arbitrator simply need not 
comply. At that point the party to the arbitration proceeding who 
wants the nonparty to testify or produce information must proceed 
in court to enforce the arbitral order. Furthermore either the 
nonparty against whom the order has been issued or the other 
party on behalf of the nonparty can file a motion to quash the 
subpoena or arbitral order. 
In determining whether 
to 
enforce 
an arbitral 
subpoena, 
the 
courts have been very solicitous of the nonparty status of a 
person challenging such an order. For example, in Reuters Ltd. v. 
Dow Jones Telerate, Inc., 231 A.D.2d 337, 662 N.Y.S.2d 450 (N.Y. 
App. 
Div. 1997), an arbitrator attempted to subpoena documents 
from 
a 
nonparty 
competitor. 
The 
court 
held 
that, 
although 
arbitrators do have authority to issue subpoenas, this subpoena 
was inappropriate because it required the nonparty to divulge 
certain 
information 
which 
may 
put 
it 
at 
a 
competitive 
disadvantage and was not sufficiently relevant to the arbitration 
case. 
The intent of Section 17 is to follow the present approach of 
courts to safeguard the rights of third parties while insuring 
that there is sufficient disclosure of information to provide for 
a full and fair hearing. Further development in this area should 
be left to case law because (1) it would be very difficult to 
draft a provision to include all the competing interests when an 
arbitrator 
issues 
a 
subpoena 
or 
discovery 
order 
against 
a 
nonparty [e.g., courts seem to give lesser weight to nonparty's 
claims that an issue lacks relevancy as opposed to nonparty's 
claims a matter is protected by privilege]; (2) state and federal 
administrative laws allowing subpoenas or discovery orders do not 
make special provisions for nonparties; and (3) the courts have 
protected well the interests of nonparties in arbitration cases. 
9. Section 17 (g) is intended to allow a court in State A 
(the State adopting the RUAA) to give effect to a subpoena or any 
discovery-related order issued by an arbitrator in an arbitration 
proceeding in State B without the need for the party who has 
received the subpoena first to go to a court in State 
B to 
receive 
an enforceable order. 
This procedure would eliminate 
duplicative court proceedings in both State A and State B before 
a witness or record or other evidence can be produced for the 
arbi tration proceeding in State B. 
The court in State A would 
have 
the 
authority 
to 
determine 
whether 
and 
under 
what 
appropriate conditions the subpoena or discovery-related orders 
should be enforced against a resident in State A. Similar to the 
language in 17(b) 
and (c), 
the statute directs the court to 
enforce 
subpoenas 
and 
discovery-related orders 
to 
"make 
the 
arbitration proceeding fair, 
expeditious, 
and cost effective." 
The last sentence of 17(g) requires that the subpoena be served 
and enforced under the laws of a civil action in State A where 
the request to enforce the subpoena is being made. 
Because 
the 
procedure 
outlined 
in 
17(g) 
is 
new, 
a 
party 
attempting to use this process in another State should reference 
Section 17(g) in the subpoena or discovery-related order so that 
the parties, persons served, and the court know of this authority. 
§8718. 
Judicial enforcement of preaward ruling by arbitrator 
If an arbitrator makes a preaward ruling in favor of a party 
to 
the 
arbitration 
proceeding, 
the 
party 
may 
request 
the 
arbitrator to incorporate the ruling into an award under section 
8719. 
A prevailing party may make a motion to the court for an 
expedited order to confirm the award under section 8722, in which 
case the court shall summarily decide the motion. 
The court 
shall issue an order to confirm the 
award unless 
the court 
vacates, modifies or corrects the award under section 8723 or: 
8724. 
Uniform Comment 
1. 
Section 
is 
currently 
the 
law 
in 
almost 
all 
jurisdictions 
to 
enforce 
preaward 
arbitral 
determinations. 
Because the orders of arbitrators are not self-enforcing, a party 
who receives a favorable ruling with which another party refuses 
to comply, must apply to a court to have the ruling made an 
enforceable order. See, e.g., Southern Seas Navigation Ltd. of 
Monrovia v. Petroleos Mexicanos of Mexico City, 606 F. Supp. 692 
(S.D.N.Y. 1985) (enforcing under FAA arbitrator's interim order 
removing lien on vessel); Island Creek Coal Sales Co. v. City of 
Gainesville, Fla., 729 F.2d 1046 (6th Cir. 1984) (enforcing under 
FAA 
arbitrator's 
interim 
award 
requiring 
city 
to 
continue 
performance of coal purchase contract until further order of 
arbitration panel): Fraulo v. GabellL 
Conn. 
App. 
708, 
A.2d 704 (1995) (enforcing under UAA preliminary orders issued by 
arbitrator regarding sale and proceeds of property); see also III 
Macneil Treatise § 34.2.1.2. 
As 
a 
general proposition, 
courts are very hesitant to review 
interlocutory orders 
of 
an arbitrator. 
The 
Ninth Circuit in 
Aerojet-General Corporation v. American Arbitration Association, 
F.2d 248,251 (9th Cir. 1973) stated that "judicial reVlew 
prior to 
indulged, 
the rendition of a final arbi tration award should be 
if at all, only in the most extreme cases." The court 
concluded that a more lax rule would frustrate a basic purpose of 
arbitration of providing for 
a 
speedy disposition without the 
expense and delay of a court proceeding. In Harleyville Mutual 
Casualty Co. v. Adair, 421 Pa. 141, 145, 218 A.2d 791, 794 (Pa. 
1966), 
the 
Pennsylvania 
Supreme 
Court 
held 
that 
to 
allow 
challenges 
to 
an arbitrator's interlocutory rulings 
would 
be 
"unthinkable." 
Massachusetts 
also 
rejected 
the 
appeal 
of 
an 
interlocutory order in Cavanaugh v. McDonnell 
& Co., 
Mass. 
452, 457, 258 N. E. 2d 561, 564 (Mass. 1970), noting that to allow 
a court to review an arbitrator's interlocutory order "would tend 
to render the proceedings neither one thing nor the other, but 
transform 
them 
into 
a 
hybrid, 
part 
judicial 
and 
part 
arbi trational." Thus Section 18 requires a court to enforce the 
preaward ruling unless the ruling should be vacated under the 
standards for 
confirming, 
modifying, 
or vacating awards 
under 
Sections 23 and 24. 
Courts have 
considered more 
closely substantive challenges to 
preaward 
rulings 
of 
arbitrators 
on 
grounds 
of 
privilege 
or 
confidentiali ty. 
In 
Hull 
Municipal 
Lighting 
Plant 
v. 
Massachusetts Municipal Wholesale Electric Co., 
Mass. 
609, 
N.E.2d 460 (1993), the defendant refused to turn over certain 
documents 
to 
the 
plaintiff, 
despite 
an 
arbitral 
subpoena 
requiring such, because the defendant claimed that portions of 
the 
documents 
contained 
attorney-client 
and 
work-product 
privileges. After the supervisor of public records had decided 
issues arising under the public records law, the court concluded 
that because the matters fell under Massachusetts public records 
law, the question of privilege was within the discretion of the 
judge and not the arbitrator. See also World Commerce Corp. v. 
Minerals 
& Chem. Philipp Corp., 
A.D. 
432, 
N.Y.S.2d 763 
(1962) 
(holding that court and not arbitrator decides whether 
documents 
of 
non-party 
to 
arbitration 
are 
protected 
as 
confidential); Civil Servo Employees Ass'n v. Soper, 105 Misc. 2d 
230, 
N.Y.S.2d 909 
(1980) 
(vacating award of arbitrator who 
incorrectly 
determined 
privilege 
of 
patient's 
confidential 
records); DiMania v. New York State Dept. of Mental Hygiene, 87 
Misc. 
2d 736,386 N.Y.S.2d 590 
(1976) 
(overruling decision of 
arbitrator 
regarding 
client's 
privilege 
of 
confidentiality); 
compare Great Scott Supermarkets, 
Inc. v. Teamsters Local 337, 
F. Supp. 1351 (E.D. Mich. 1973) (holding that arbitrator does 
not 
exceed 
powers 
in 
contract 
under 
FAA 
§10 
by 
ordering 
production of documents, wi th deletions, that party claims are 
subject to attorney-client privilege). Because of the involvement 
of important legal rights, a court should review more carefully 
claims of confidentiality, trade secrets, privilege, or other 
matters protected from disclosure than other assertions that a 
preaward order of an arbitrator is invalid. 
2. Section 18 states that a party may request an "expedited 
order"under Section 22, "in which case the court shall summarily 
decide the [motion]." That language is similar to that found in 
Section 
that 
a 
court 
in 
a 
proceeding to 
compel 
or 
stay 
arbitration should act "summarily." The term "expedited" has been 
used in other statutes and court rules. 8 U.S.C. § l252(e)(4) (an 
immigration statute providing that when a person is deported and 
files an appeal, "it shall be the duty of the court to advance on 
the docket and to expedite to the greatest possible extent the 
disposition of any case" under the statute); Fed. R. Civ. P. 65 
(providing that if an adverse party contests a court's granting 
of 
a 
temporary restraining order 
the court must 
proceed 
as 
expeditiously as "the ends of justice require" and the hearing 
for a preliminary injunction "shall be set down for hearing at 
the earliest possible time and takes precedence of all matters 
except older matters of the same character."); Cal. St. Bar P. R. 
(stating that in cases involving the state bar in California, 
"a motion to set aside or vacate a default judgment shall be 
decided 
on 
an 
expedited basis."). 
The 
intent 
of 
the 
term 
"expedited" is that a 
court should, 
to the extent possible, 
advance on the docket a matter involving the enforcement of an 
arbi trator' s preaward ruling in order to preserve the integrity 
of the arbitration proceeding which is underway. 
The term "summarily" has the same meaning as in Section 7 that a 
trial 
court 
should 
expeditiously 
and 
without 
a 
jury trial 
determine 
whether 
an arbitrator's 
preaward 
ruling 
should 
be 
enforced. Grad v. Wetherholt Galleries, 660 A.2d 903 (D.C. 1995); 
Wallace v. Wiedenbeck, 
A.D.2d 1091, 
N.Y.S.2d 230, 
(N.Y. App. Div. 1998); Burke v. Wilkins, 131 N.C.App. 687, 
S.E.2d 913 (1998); In re MHI P'ship, Ltd., 7 S.W.3d 918 (Tex. Ct. 
App. 1999). 
3. There is no provision in RUAA Section 28 for an appeal 
from a court decision on a preaward ruling by an arbitrator. The 
intent of the statute is not to allow such orders from a lower 
court to be appealed. 
4. An arbitrator's order denying a request for a preaward 
ruling is not subject to an action for review under Section 18 
because 
(1) 
such 
a 
provision would 
lead to delay 
and 
more 
litigation without corresponding benefit to the process and (2) 
the primary reason to allow a 
court to consider a 
favorable 
preaward 
ruling 
is 
because 
such 
arbitral 
orders 
are 
not 
self-enforcing. The parties whose preaward requests for relief 
are denied by an arbitrator can seek review of such denial after 
the final award is issued under Section 20, vacatur, or Section 
21, modification or correction of an award. 
5. 
Section 
requires 
incorporated 
into 
an 
"award 
procedural purposes there must 
court to confirm under Section 
under Section 23 or 24. 
an 
arbitrator 0 s 
ruling 
to 
be 
under 
Section 
19" 
because 
for 
be an award under Section 19 for a 
or to vacate, modify or correct 
§8119. 
Award 
1. 
Record. 
An arbitrator shall make a record of an award. 
The 
record must 
be signed or otherwise authenticated by 
any 
arbitrator who concurs with the award. 
The arbitrator or the 
arbitration 
organization 
shall 
give 
notice 
of 
the 
award, 
including a copy of the award, to each party to the arbitration 
proceeding. 
2. 
Time of award. 
An award must be made wi thin the time 
specified by the agreement to arbitrate or, if not specified 
therein, wi thin the time ordered by the court. 
The court may 
extend or the parties to the arbitration proceeding may agree in 
a record to extend the time. 
The court or the parties may do so 
within or after the time specified or ordered. 
A party waives 
any objection that an award was not timely made unless the party 
gives notice of the objection to the arbitrator before receiving 
notice of the award. 
Uniform Comment 
The 
terms 
"or 
otherwise 
authenticated" 
are 
intended 
to 
conform with the Electronic Signatures in Global and National 
Commerce 
Act, 
U.S.C.A. 
§ 
7001, 
noted 
in Section 
30. 
An 
arbitrator can execute an award by an electronic signature which 
is intended to mean 
"an electronic sound, 
symbol, 
or process 
attached to or logically associated with a contract or other 
record and executed or adopted by a person with the intent to 
sign the record." 15 U.S.C.A. § 7006(5). 
§8120. 
Change of award by arbitrator 
1. 
Modify or correct award. 
On motion to an arbitrator by 
a party to an arbitration proceeding, the arbitrator may modify 
or correct an award: 
A. 
Upon 
a 
ground stated in section 8724, 
subsection 1, 
paragraph A or C; 
B. 
Because the arbitrator has not made a final and definite 
award 
upon 
a 
claim 
submitted 
by 
the 
parties 
to 
the 
arbitration proceeding; or 
C. 
To clarify the award. 
2. 
Timing of motion. 
A motion under subsection 1 must be 
made and notice given to all parties within 20 days after the 
movant receives notice of the award. 
3. 
Objection 
to 
motion. 
A 
party 
to 
the 
arbitration 
proceeding must give notice of any objection to the motion within 
days after receipt of the notice. 
4. 
Motion to court pending. 
If a motion to the court is 
pending under section 8722, 
8723 or 8724, the court may submit 
the claim to the arbitrator to consider whether to modify or 
correct the award: 
A. 
Upon 
a 
ground stated in section 8724, 
subsection 1, 
paragraph A or C; 
B. 
Because the arbitrator has not made a final and definite 
award 
upon 
a 
claim 
submitted 
by 
the 
parties 
to 
the 
arbitration proceeding; or 
C. 
To clarify the award. 
5. 
Modified or corrected award. 
An 
award modified or 
corrected pursuant to this section is subject to sections 8719, 
subsection 1, 8722, 8723 and 8724. 
Uniform Connent 
1. Section 20 provides a mechanism in subsections (a), (b), 
and (c) for the parties to apply directly to the arbitrators to 
modify or correct an award and in subsection (d) for a court to 
submit 
an award back 
to the arbitrators for 
a 
determination 
whether 
to 
modify 
or 
correct 
an 
award. 
The 
situation 
in 
subsection (d) would occur if either party under Section 22, 23, 
or 24 files a motion with a court within 90 days to confirm, 
vacate, 
modify or correct an award and the court decides 
to 
remand 
the 
matter 
back 
to 
the 
arbitrators. 
The 
revised 
alternative is based on the Minnesota version of the UAA. 
Minn. 
Stat. Ann. §572.16; see also 710 Ill. Compo Stat. Ann. 5/9; Ky. 
Rev. Stat. 417.130. 
2. Section 20 serves an important purpose in light of the 
arbitration doctrine of functus officio which is "a general rule 
ln common 
law arbitration that when arbitrators have executed 
their awards and declared their decision they are functus officio 
and have no power to proceed further." Mercury Oil Ref. Co. 
V. 
Oil 
Workers, 
F.2d 
980, 
(10th Cir. 
1951); 
see 
also 
International Bhd. of Elec. Workers, Local Union 1547 V. City of 
Ketchikan, Alaska, 805 P. 2d 340 (Alaska 1991); Chaco Energy Co. 
V. Thercol Energy Co., 
N. M. 
127, 
P. 2d 558 (1981). Under 
this doctrine when arbitrators finalize an award and deliver it 
to the parties, they can no longer act on the matter. See 1 Domke 
on Commercial Arbitration §§22:01, 32:01 (Gabriel M. Wilner, ed. 
1996) [hereinafter Domke]. Indeed because of the functus officio 
doctrine there is some question whether, in the absence of an 
authorizing statute, a court can remand an arbitration decision 
to the arbitrators who initially heard the matter. 1 Domke §35:03. 
3. The grounds in Section 20(a) and (d) are essentially the 
same as those in UAA Section 9, which provides the parties with a 
limited opportunity to request modification or correction of an 
arbitration award either (1) when there is an error as described 
ln 
Section 
24(a)(1) 
for 
miscalculation 
or 
mistakes 
in 
descriptions or in Section 24 (a) (3) for awards imperfect in form 
or (2) "for the purpose of clarifying the award." Chaco Energy 
CO. 
V. 
Thercol Energy Co., 
N.M. 
127, 
P.2d 558 
(1981) 
(finding an amended arbitration award for purposes other than 
those enumerated in statute is void). 
Section 20(a)(2) 
and 
(d)(2) 
include 
an additional ground for 
modification or correction that is based on FAA Section 10(a)(4) 
where an arbitrator's award is either so imperfectly executed or 
incomplete that it is questionable whether the arbitrators ruled 
on a submitted issue. See, e.g., Flexible Mfg. Sys. Pty. Ltd. v. 
Super Prods. Corp., 86 F.3d 96 (7th Cir. 1996); Americas Ins. Co. 
V. Seagull Compania Naviera, S.A., 774 F.2d 64 (2nd Cir. 1986). 
4. The benefit of a provision such as Section 20 is evident 
ln a 
comparison with the FAA, 
which has no similar provision. 
Under the FAA, 
there is no statutory authority for parties to 
request 
arbitrators 
to 
correct 
or 
modify 
evident 
errors. 
Furthermore the FAA has only a limited exception in FAA Section 
10(a)(5) for a court to order a rehearing before the arbitrators 
when an award is vacated and the time within which the agreement 
required the award to be issued has not expired. This lack of a 
statutory basis both for arbitrators to clarify a matter and, in 
most instances, for a court to remand cases to arbitrators has 
caused confusing case law under the FAA regarding whether and 
when a court can remand or arbitrators can clarify matters. See 
III Macneil Treatise §§37.6.4.4; 42.2.4.3; Legion Ins. 
Co. 
v. 
VCW, 
Inc., 
F.3d 
(8th Cir. 
1999). 
The mechanism for 
correction of errors in RUAA Section 20 enhances the efficiency 
of the arbitral process. 
§8721. 
Remedies: fees and e~nses of arbitration proceeding 
1. 
Relief as authorized in law. 
An arbitrator may award 
punitive damages or other exemplary relief if such an award is 
authorized by law in a civil action involving the same claim and 
the evidence produced at the hearing justifies the award under 
the legal standards otherwise applicable to the claim. 
2. 
Attorney's fees and expenses. 
An arbitrator may award 
reasonable 
attorney's 
fees 
and 
other 
reasonable 
expenses 
of 
arbitration if such an award is authorized by law in a civil 
action involving the 
same 
claim or by the agreement of the 
parties to the arbitration proceeding. 
3. 
Other remedies. 
As to all remedies other than those 
authorized 
by 
subsections 
and 
2, 
an arbitrator may 
order 
remedies the arbitrator considers just and appropriate under the 
circumstances of the arbitration proceeding. 
The fact that such 
a remedy could not or would not be granted by the court is not a 
ground for refusing to confirm an award under section 8722 or for 
vacating an award under section 8723. 
4. 
Arbitrator's fees and expenses. 
An arbitrator's fees 
and expenses, 
together with other expenses, 
must be paid as 
provided in the award. 
5. 
Bases in fact and law. 
If an arbitrator awards punitive 
damages 
or 
other 
exemplary 
relief 
under 
subsection 
1, 
the 
arbitrator 
shall 
specify 
in 
the 
award 
the 
basis 
in 
fact 
justifying and the basis in law authorizing the award and state 
separately the amount of the punitive damages or other exemplary 
relief. 
Uniform Comment 
1. Section 21(a) provides arbitrators the authority to make 
an award of punitive damages or other exemplary relief; however, 
the parties by agreement cannot confer such authority on 
an 
arbitrator where the arbitrator by law could not otherwise award 
such relief. 
In regard to punitive damages, it is now well established that 
arbitrators have authority to award punitive damages under the 
FAA. 
Mastrobuono v. 
Shearson Lehman Hutton, Inc., 
U.S. 
(1995). Federal authority is in accord with the preponderance of 
decisions applying the UAA and state arbitration statutes. See, 
e.g., Baker v. Sadick, 162 Cal. App. 
3d 618, 208 Cal. Rptr. 676 
(1984); Eychner v. Van Vleet, 870 P.2d 486 (Colo. Ct. App. 1993); 
Richardson Greenshields Sec., Inc. v. McFadden, 
So. 
2d 1212 
(Fla. Dist. Ct. App. 1987); Bishop v. Holy Cross Hosp., 
Md. 
App. 688, 410 A.2d 630 (1980); Rodgers Builders, Inc. v. McQueen, 
N.C. App. 16, 331 S.E.2d 726 (1985), review denied, 315 N.C. 
590, 341 N.E.2d 29 (1986); Kline v. Q'Quinn, 874 S.W.2d 776 (Tex. 
Ct. App. 1994), cert. denied, 
U.S. 1142 (1995); Grissom v. 
Greener 
& Sumner Constr., Inc., 
S.W.2d 709 
(Tex. Ct. 
App. 
1984); 
Anderson 
v. 
Nichols, 
W. 
Va. 
284, 
S.E.2d 
(1987); but see Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 353 
N.E.2d 793, 
N.Y.S.2d 831 (1976); Leroy v. Waller, 
Ark. 
App. 292,731 S.W.2d 789 (1987); School City of E. Chicago, Ind. 
v. East Chicago Fed. of Teachers, 422 N.E.2d 656 (Ind. Ct. App. 
1981); Shaw v. Kuhne1 & Assocs., 102 N.M. 607, 698 P.2d 880,882 
(1985). 
If an arbitrator decides to award punitive damages under Section 
21(a), not only must such an award be authorized by law as if the 
claim were made in a civil action, but the arbitrator also must 
apply the same legal standards to the claim as required in a 
civil action and the evidence must be sufficient to justify an 
award of punitive damages. 
2. Section 21(b) authorizes arbitrators to award reasonable 
attorney's 
fees 
and other 
reasonable 
expenses 
of arbitration 
where 
such 
would 
be 
allowed 
by 
law in 
a 
civil 
action; 
ln 
addi tion, parties may provide for the remedy of attorney's fees 
and other expenses 
in their agreement 
even if not otherwise 
authorized by law. 
As to arbitrators awarding attorney's fees, statutes in Texas and 
Vermont allow recovery for attorney's fees in arbitration when 
the law or parties' agreement would allow for such a recovery in 
a civil action. Tex Civ. Prac. & Rem. Code Ann. § 171.010; 12 Vt. 
Stat. Ann. §5665; Monday v. Cox, 881 S.W.2d 381 (Tex. App. 1994) 
(providing 
that 
arbitrator 
shall 
award 
attorney's 
fees 
when 
parties' agreement so specifies or State's law would allow such 
an award); see also Cal. Civil Code § 1717 (allowing award of 
attorney's fees if contract specifically provides such). Also, 
statutes 
such 
as 
those 
involving 
civil 
rights, 
employment 
discr imination, anti trust, and others, specifically allow courts 
to order attorney's fees in appropriate cases. 
Today many of 
these 
types 
of 
causes 
of 
action are 
subject to arbitration 
clauses. Gilmer v. Interstate/Johnson Lane Corp., 
U.S. 
(1991) 
(age discrimination); Shearson/Affierican Express, Inc. v. 
McMahon, 
U.S. 
(1987) 
(civil RICO 
claims); Mitsubishi 
Motors 
Corp. 
v. 
Soler Chrysler-Plymouth, 
Inc., 
U.S. 
(1985) (antitrust claim); Pub. L. No. 102-166, § ll8, 105 Stat. 
1071, 1081 (1991 Civil Rights Act that states "arbitration * * * 
is encouraged to resolve disputes" 
under 
the 
Americans 
with 
Disabilities Act, Title VII of the 1964 Civil Rights Act, the 
Civil 
Rights 
Act 
of 
1866, 
and 
the 
Age 
Discrimination 
in 
Employment Act). 
Although Section 21(b) 
in regard to attorney's fees is like 
Section 21(a) 
concerning punitive or other exemplary 
damages 
because both sections allow recovery when such an award has a 
basis 
in 
law, 
Section 
21(b) 
has 
no 
requirement 
that 
the 
arbitrator 
apply 
the 
appropriate 
legal 
standard 
or 
have 
sufficient evidence to support a claim of attorney's fees under 
the applicable statute. 
2. Because Section 21 is a waivable provision under Section 
4(a), 
the parties 
can 
agree 
to 
limit or 
eliminate 
certain 
remedies "to the extent permitted by law." It should be noted 
that 
~n arbitration cases where, 
if the matter had been 
~n 
litigation, a person would have been entitled to an award of 
attorneys fees or punitive damages or other exemplary relief, 
there is doubt whether 
one 
of 
the parties 
by contract 
can 
eliminate the right to attorney's fees or punitive damages or 
other exemplary relief. 
Some courts have held that they will 
defer to an arbitration award involving statutory rights only if 
a party has the right to obtain the same relief in arbitration as 
is available in a court. See, e.g., Cole v. Burns Int'l Sec. 
~, 105 F.3d 1465 (D.C. Cir. 1997) (finding that employee with 
race discrimination claim under Title VII is bound by predispute 
arbitration agreement under FAA if the employee has the right to 
the same relief as if he had proceeded in court); Graham Oil Co. 
v. ARCO Prods. Co" 43 F.3d 1244 (9th Cir.), cert. denied, 516 
U.S. 
(1995) 
(stating that arbitration clause 
compelling 
franchisee 
to surrender 
important rights, 
including right of 
attorney fees, guaranteed by the Petroleum Marketing Practices 
Act, contravenes this statute); DeGaetano v. Smith Barney, Inc., 
FEP Cases 579 
(S.D.N.Y. 
1997) 
(concluding that award under 
arbitration clause requiring each side to pay own attorney's fees 
in Title 
VII 
claim 
on 
which plaintiff prevailed but 
where 
arbitrators refused to 
award attorney's fees 
set aside as 
a 
manifest disregard of 
the 
law; 
the arbitration of statutory 
claims as a condition of employment are enforceable only to the 
extent that the arbitration preserves protections and remedies 
afforded 
by 
the 
statute); 
Armendariz 
v. 
Foundation 
Health 
Psychcare Services, Inc., 
Cal. 4th 83, 
P. 3d 669, 
Cal. 
Rptr. 
2d 
(2000) 
(holding that limitation in arbitration 
agreement 
on 
remedies 
for 
employee 
to 
only backpay 
and 
not 
allowing 
employee 
in 
anti-discrimination 
claim 
to 
attempt 
recovery of punitive damages or attorney's fees contributes to 
determination that arbitration clause is void as unconscionable); 
Due Process Protocol for Mediation and Arbitration of Statutory 
Disputes Arising out of the Employment Relationship Section C(5) 
(May 
9, 
1995) 
("The arbitrator should be 
empowered to 
award 
whatever relief would be available in court under the law."); 
National 
Academy of Arbitrators, 
Guidelines on Arbitration of 
Statutory Claims 
Under 
Employer-Promulgated Systems 
Art. 
4(D) 
(May 21, 1997) 
("Remedies should be consistent with the statute 
or statutes being applied, and with the remedies a party would 
have received had the case been tried in Court. These remedies 
may 
well 
exceed 
the 
traditional 
arbitral 
remedies 
of 
reinstatement 
and 
back 
pay, 
and 
may 
include 
witnesses' 
and 
attorneys' 
fees, 
costs, 
interest, punitive damages, 
injunctive 
relief, etc. "). 
3. Section 21(c) preserves the traditional, broad right of 
arbitrators to fashion remedies. See III Macneil Treatise Ch, 36; 
Michael Hoellering, Remedies in Arbitration, Arbitration and the 
Law 
(1984) 
(annotating federal and state decisions). Generally 
their authority to structure relief is defined and circumscribed 
not by legal principle or precedent but by broad concepts of 
equity and justice. See, e.g., David Co. v. Jim Miller Constr., 
Inc., 444 N.W.2d 836, 842 (Minn. 1989); SCM Corp. v. Fisher Park 
Lane Co., 40 N.Y.2d 788, 793, 358 N.E.2d 1024, 1028, 390 N.Y.S.2d 
398, 402 (1976). This is why Section 21(c) allows an arbitrator 
to order broad relief even that beyond the limits of courts which 
are circumscribed by principles of law and equity. The language 
in UAA Section 12 (a) 
[RUAA Section 23 (a)] stating that "the fact 
that the relief was 
such that it could not or would not be 
granted by a court is not ground for vacating or refusing to 
confirm [an] award" has been moved to this section on remedies. 
The purpose of including this language in the UAA was to insure 
that arbitrators have a great deal of creati vi ty in fashioning 
remedies; 
broad 
remedial discretion is 
a 
positive 
aspect of 
arbitration. 
Just as 
in 
UAA 
Section 12(a), 
this language 
in 
Section 21(c) means that arbitrators issuing remedies will not be 
confined 
to 
limitations 
under 
principles 
of 
law 
and 
equity 
(unless the law or the parties' agreement specifically confines 
them). 
4. Section 21 (d) is based upon UAA Section 10 that allows 
arbi trators, unless the agreement provides to the contrary, to 
determine 
in 
the 
award 
payment 
of 
expenses, 
including 
the 
arbitrator's expenses and fees. The most significant change is 
that 
UAA 
Section 
prohibits 
an 
arbitrator 
from 
awarding 
attorney's 
fees; 
Section 
(b) 
specifically 
allows 
for 
an 
arbitrator to make such an award. 
5. 
Section 
21(e) 
addresses 
concerns 
respecting arbitral 
remedies of punitive or exemplary damages because of the absence, 
under present law, of guidelines for arbitral punitive awards and 
of the severe limitations on judicial review arbitration awards. 
Recent data from the securities industry provides some evidence 
that arbitrators 
do 
not 
abuse 
the 
power 
to 
punish 
through 
excessive awards. See generally Thomas J. Stipanowich, Punitive 
Damages and the Consumerization of Arbitration, 92 Nw. L. Rev. 1 
(1997); 
Richard 
Ryder, 
Punitive 
Award 
Survey, 
Sec. 
Arb. 
Commentator, Nov. 1996, at 4. Because legitimate concerns remain, 
however, specific provisions have been included in Section 21(e) 
that require arbitrators who award a remedy of punitive damages 
to specify in the award the basis in fact for justifying, in law 
for authorizing, and the amount of the award attributable to the 
punitive damage remedy. Again, it should be noted that parties 
can 
waive 
the 
requirements 
set 
forth 
in 
Section 
21(e) 
by 
agreement. 
§S122. 
Confirmation of award 
After a party to an arbitration proceeding receives notice 
of an award, the party may make a motion to the court for an 
order confirming the award, at which time the court shall issue a 
confirming 
order 
unless 
the 
award 
is 
modified 
or 
corrected 
pursuant to section 8720 
or 
8724 
or is vacated pursuant to 
section 8723. 
Uniform Coument 
1. The language in Section 22 has been changed to be similar 
to 
that 
in 
FAA 
Section 
to 
indicate 
that 
a 
court 
has 
jurisdiction at the time a party files a motion to confirm an 
award unless the award has been changed under Section 20 or 
vacated, modified or corrected under Section 23 or 24. Although a 
losing party to an arbitration has 90 days after the arbitrator 
gives notice of the award to file a 
motion to vacate under 
Section 23(b) or to file a motion to modify or correct under 
Section 24(a), 
a 
court need not wait 
days 
before taking 
jurisdiction if the winning party files a motion to confirm under 
Section 22. Otherwise the losing party would have this period of 
days in which possibly to dissipate or otherwise dispose of 
assets necessary to satisfy an arbitration award. If the winning 
party files 
a 
motion to confirm prior to 
days after the 
arbitrator gives notice of the award, the losing party can either 
(1) file a motion to vacate or modify at that time or (2) file a 
motion to vacate or modify within the 90-day statutory period. 
2. 
The 
Drafting 
Committee 
considered 
but 
rejected 
the 
language in FAA Section 9 that limits a motion to confirm an 
award to a one-year period of time. The consensus of the Drafting 
Committee was that the general statute of limitations in a State 
for the filing and execution on a judgment should apply. 
§8123. 
Vacating award 
1. 
Grounds for vacating. 
Upon motion to the court by a 
party to an arbitration proceeding, the court shall vacate an 
award made in the arbitration proceeding if: 
A. 
The award was procured by corruption, fraud or other 
undue means; 
B. 
There was: 
(1) 
Evident partiality by an arbitrator appointed as a 
neutral arbitrator; 
(2) 
Corruption by an arbitrator; or 
(3) 
Misconduct by an arbitrator prejudicing the rights 
of a party to the arbitration proceeding; 
c. 
An 
arbitrator 
refused to 
postpone 
the hearing 
upon 
showing of sufficient cause for postponement, 
refused to 
consider evidence material to the controversy or otherwise 
conducted the hearing contrary to section 8715 
so as to 
prejudice 
substantially 
the 
rights 
of 
a 
party 
to 
the 
arbitration proceeding; 
D. 
An arbitrator exceeded the arbitrator's powers: 
E. 
There was no agreement to arbitrate, unless the person 
participated in the arbitration proceeding without raising 
the objection under section 8715, 
subsection 3 not later 
than the beginning of the arbitration hearing; or 
F. 
The arbitration was conducted without proper notice of 
the initiation of an arbitration as reguired in section 8709 
so as to prejudice substantially the rights of a party to 
the arbitration proceeding. 
2. 
Timing of motion to vacate. 
A motion under this section 
must be filed within 90 days after the movant receives notice of 
the award pursuant to section 8719 or within 90 days after the 
movant receives notice of a modified or corrected award pursuant 
to section 8720, unless the movant alleges that the award was 
procured by corruption, fraud or other undue means, in which case 
the motion must be made within 90 days after the ground is known 
or by the exercise of reasonable care would have been known by 
the movant. 
3. 
Rehearing. 
If the court vacates an award on a ground 
other than that set forth in subsection 1, paragraph E, it may 
order a rehearing. 
If the award is vacated on a ground stated in 
subsection 1, paragraph A or B, the rehearing must be before a 
new arbitrator. 
If the award is vacated on a ground stated in 
subsection 1, paragraph C, D or F, the rehearing may be before 
the arbitrator who made the award or the arbitrator's successor. 
The arbitrator must render the decision in the rehearing within 
the same time as that provided in section 8719, subsection 2 for 
an award. 
4. 
Confirmation of award. 
If the court denies a motion to 
vacate an award, it shall confirm the award unless a motion to 
modify or correct the award is pending. 
Uniform Comment 
A. Comment on Section 23(a)(2), (5), (6), and (c) 
1. Section 23(a)(2) is based on UAA Section 12(a)(2). The 
reason "evident partiality" 1S a grounds for vacatur only for a 
neutral arbitrator is because non-neutral arbitrators, 
unless 
otherwise 
agreed, 
serve 
as 
representatives 
of 
the 
parties 
appointing 
them. 
As 
such, 
these 
non-neutral, 
party-appointed 
arbitrators are not expected to be impartial in the same sense as 
neutral arbitrators. Macneil Treatise § 28.4. However, corruption 
and misconduct are grounds to vacate an award by both neutral 
arbitrators and non-neutral arbitrators appointed by the parties. 
As to misconduct, before courts will vacate an award on this 
ground, objecting parties must demonstrate that the misconduct 
actually prejudiced their rights. Creative Homes & Millwork, Inc. 
v. Hinkle, 426 S.E.2d 480 (N.C. Ct App. 1993). Courts have not 
required 
a 
showing 
of 
prejudice 
when 
parties 
challenge 
an 
arbitration award on grounds of evident partiality of the neutral 
arbitrator 
or 
corruption in 
any 
of 
the 
arbitrators. 
Gaines 
Constr. Co. v. Carol City Ut., Inc., 164 So. 
2d 270 (Flo Dist. 
Ct. 1964); Northwest Mech., Inc. v. Public Ut. Comm'n, 283 N.W.2d 
(Minn. 1979); Egan & Sons Co. v. Mears Park Dev. Co., 414 
N.W.2d 785 (Minn. Ct. App. 1987). Corruption is also a ground for 
vacatur in Section 23(a)(1) that does not require any showing of 
prejudice. 
2. The purpose of Section 23(a)(5) is to establish that if 
there is no valid arbitration agreement, then the award can be 
vacated; however, the right to challenge an award on this ground 
is conditioned upon the party who contests the validity of an 
arbi tration agreement raising this objection no later than the 
beginning of the arbitration hearing under Section 15(c) if the 
party participates in the arbitration proceeding. 
See, 
e.g., 
Hwang v. 
Tyler, 
Ill. App. 
3d 43, 
N.E.2d 243, 
appeal 
denied, 153 Ill. 2d 559,624 N.E.2d 807 (1993) (stating that if 
issue not adversely determined under § 2 of UAA 
and if party 
raised 
objection 
in 
arbitration 
hearing, 
party 
can 
raise 
challenge 
to 
agreement 
to arbitrate in proceeding to vacate 
award); 
Borg, 
Inc. 
v. 
Morris 
Middle 
Sch. 
Dist. 
No. 
54, 
Ill.App.3d 913, 
N.E.2d 818 
(1972) 
(finding that issue of 
whether there is an agreement to arbitrate cannot be raised for 
first 
time 
after 
the 
arbitration 
award); 
Spaw-Glass 
Constr. 
ServO{ Inc. v. Vista De Santa Fe, Inc., 114 N.M. 
557, 844 P.2d 
(1992) 
(holding that party 
who 
compels 
arbitration 
and 
participates in hearing without raising objection to the validity 
of arbitration agreement 
cannot afterwards attack arbitration 
agreement). 
The purpose of the language requiring a party participating in an 
arbitration proceeding to raise an objection that no arbitration 
agreement exists "not later than the beginning of the arbitration 
hearing" is to insure that the party makes a timely objection at 
the start of the arbitration hearing rather than causing the 
other 
parties 
to 
go 
through 
the 
time 
and 
expense 
of 
the 
arbitration hearing only to raise the objection for the first 
time later in the arbitration process or in a motion to vacate an 
award. 
A person who refuses to participate in or appear at an 
arbitration 
proceeding 
retains 
the 
right 
to 
challenge 
the 
validity of an award on the ground that there was no arbitration 
agreement in a motion to vacate. 
3. Section 23(a)(6) is a new ground of vacatur related to 
improper 
notice 
as 
to 
the 
initiation 
of 
the 
arbitration 
proceeding under Section 9. The notice requirement in Section 9 
is 
a 
minimal 
one 
intended 
to 
meet 
due 
process 
concerns 
by 
informing a person as to the controversy and remedy sought. The 
notice 
of 
initiation of 
the 
arbitration proceeding 
is 
also 
subject to reasonable variation by the parties' agreement. 
See 
Section 4(b)(2). 
4. The notice of initiation of arbitration is not intended 
to be a formal pleading requirement. Thus, a party may waive the 
objection in Section 9(b) by failing to make a timely objection. 
Section 
(a) (6) 
also 
requires 
that 
there 
is 
substantial 
prejudice to the other party before a court vacates an award for 
improper notice of initiation. 
5. If a court orders a rehearing, Section 23(c) 
that the arbitrator must "render the decision in the 
provides 
rehearing 
within the same time as provided in Section 19(b) for an award." 
This time period should be the same in the rehearing as in the 
original hearing. 
For 
example, 
if an 
agreement 
to arbitrate 
required an arbitrator render an award within 90 days after the 
close of the hearing, the arbitrator in the new hearing must make 
the award within 90 days after the close of the rehearing and not 
of the original hearing. 
B. Coument on the Concept of Contractual Provisions for "Opt-In" 
Review of Awards 
1. 
During 
the 
course 
of 
the 
Drafting 
Committee's 
deliberations between 
1996 
and 
2000, 
no 
issue produced more 
discussion and debate than the question of whether Section 23 of 
the RUAA should include a provision that the parties could "opt 
in" to judicial review of arbitration awards for errors of law or 
fact or any other grounds not prohibited by applicable law. 
There 
are 
certain policy 
reasons 
both 
for 
and 
against 
the 
adoption of a provision in the RUAA for expanded judicial review 
of 
an arbitrator's decision for errors of 
law or fact. 
The 
value-added dimensions considered by the Drafting Committee were 
three. First, there is an "informational" element in that such a 
provision would clearly inform the parties that they can "opt in" 
to enhanced judicial review. 
Second, 
an opt-in provision, if 
properly framed, can serve a "channeling" function by setting out 
standards for the types and extent of judicial review permitted. 
Such standards would ensure substantial uniformity in these "opt 
in" provisions and facilitate the development of a consistent 
body 
of 
case 
law 
pertaining 
to 
those 
contract 
provisions. 
Finally, it can be argued that provision of the "opt in" safety 
net will encourage parties whose fear of the "wrongly decided" 
award previously prevented them from trying arbitration to do so. 
The 
Drafting 
Committee 
weighed 
these 
value-added 
dimensions 
against the risks/downsides of adding "opt in"provision to the 
Act. 
There are several risks and downsides. 
Paramount is the 
assertion that permitting parties a "second bite at the apple" on 
the 
merits 
effectively 
eviscerates 
arbitration 
as 
a 
true 
alternative to traditional litigation. An opt-in section in the 
RUAA might lead to the routine inclusion of review provisions in 
arbitration 
agreements 
in order 
to 
assuage 
the 
concerns 
of 
parties 
uncomfortable 
with 
the 
risk 
of 
being 
stuck 
with 
disagreeable arbitration awards that are 
immune 
from judicial 
review. The inevitable post-award petition for vacatur would in 
many cases result in the negotiated settlement of many disputes 
due to the specter of vacatur litigation the parties had agreed 
would be resolved in arbitration. 
This line of argument asserts further that an opt-in provision 
would virtually ensure that, in cases of consequence, losers will 
peti tion for vacatur, thereby robbing commercial arbitration of 
its finality 
and 
making 
the 
process 
more 
complicated, 
time 
consuming and expensive. Arbitrators would be effectively obliged 
to provide detailed conclusions of law and if the parties agree 
to judicial review for errors of fact, findings of fact in order 
to facilitate review. 
In order to lay the predicate for the 
appeal of unfavorable awards, transcripts would become the norm 
and counsel would be required to expend substantial time 
and 
energy making sure the record would support an appeal. Finally, 
the 
time 
until 
resolution 
in 
many 
cases 
would 
be 
greatly 
lengthened, 
and the prospect of proceedings being reopened on 
remand following judicial review would increase. 
At its core, arbitration is supposed to be an al ternati ve to 
litigation in a court of law, not a prelude to it. It can be 
argued that parties unwilling to accept the risk of binding 
awards 
because 
of 
an 
inherent mistrust 
of 
the 
process 
and 
arbitrators are best off contracting for advisory arbitration or 
foregoing arbitration entirely and relying instead on traditional 
litigation. 
The third argument raised in opposition to an opt-in provision is 
the prospect of a backlash of sorts from the courts. The courts 
have 
blessed 
arbitration 
as 
an 
acceptable 
alternative 
to 
traditional 
litigation, 
characterizing it as 
an 
exercise 
in 
freedom of contract that has created a significant collateral 
benefit of making civil court dockets more manageable. They are 
not likely to view with favor parties exercising the freedom of 
contract to gut the finality of the arbitration process and throw 
disputes back into the courts for decision. It is maintained that 
courts faced with that prospect may well lose their recently 
acquired enthusiasm for commercial arbitration. 
2. In addition to the policy differences noted above, the 
Drafting Committee was also concerned with 
of opinion as 
to the legal propriety of 
reflected in the developing case law. 
the current diversity 
the "opt-in" device 
The 
first 
concern 
with 
the 
opt-in mechanisms 
providing 
for 
judicial review of challenged arbitration awards is the specter 
of FAA preemption. The Supreme Court has made clear its belief 
that the FAA preempts conflicting state arbitration law. Neither 
FAA Section 10 (a) nor the federal common law developed by the 
U.S. 
Courts 
of 
Appeal 
permit 
vacatur 
for 
errors 
of 
law. 
Consequently, 
there 
is 
a 
legitimate 
question 
of 
federal 
preemption concerning the validity of 
a 
state 
law provision 
sanctioning vacatur for errors of law when the 
FAA 
does not 
permit it. 
However, 
the 
specter 
of 
FAA 
preemption is 
balanced 
by 
the 
assertion that the principle of Volt Information Sciences, Inc. 
v. 
Stanford University, 
U.S. 
(1989) 
that a 
clear 
expression of intent by the parties to conduct their arbitration 
under a state law rule that conflicts with the FAA effectively 
trumps the rule of FAA preemption -
should serve to legitimize a 
state arbitration statute with different standards of review. 
This assertion is particularly persuasive if one believes that an 
arbi tration agreement by the parties whereby they provide for 
judicial review of an arbitrator's decisions for errors of law or 
fact cannot be characterized as "anti-arbitration." By this view, 
such an opt-in feature of judicial review of arbitral awards for 
errors of law or fact is intended to further and to stabilize 
commercial arbitration and therefore is 
in harmony with the 
pro-arbitration public policy of the FAA. Of course, in order to 
fully track the preemption caveat articulated in Volt and further 
refined in Mastrobuono v, Shearson Lehman Hutton, Inc., 514 U.S. 
(1995), 
the parties' 
arbitration agreement 
would 
need to 
specifically and unequivocally invoke the law of the adopting 
State in order to override any contrary FAA law. 
3. 
The second major impediment to inclusion of an opt-in 
provision 
for 
judicial 
review 
in 
the 
RUAA 
(and 
contractual 
provisions to the same effect) is the contention that the parties 
cannot contractually "create" subject matter jurisdiction in the 
courts 
when it does 
not otherwise exist. 
The 
"creation" 
of 
jurisdiction 
transpires 
because 
a 
statutory 
provision 
that 
authorizes the parties to contractually create or expand the 
jurisdiction of the state or federal courts can result in courts 
being 
obliged to 
vacate 
arbitration 
awards 
on 
grounds 
they 
otherwise would be foreclosed 
from relying upon. 
Court cases 
under the federal law show the uncertainty of an opt-in approach. 
See, e.g., Chicago Typographical Union v. Chicago Sun-Times, 935 
F.2d 1501, 1505 (7th Cir. 1991) ("If the parties want, they can 
contract 
for 
an 
appellate 
arbitration 
panel 
to 
review 
the 
arbitrator's award. But they cannot contract for judicial review 
of that award; federal [court) jurisdiction cannot be created by 
contract.") 
(labor 
arbitration 
case); 
but 
see 
Gateway 
Technologies, Inc. v. MCI Telecommunications Corp., 64 F. 3d 993, 
(5th Cir. 1995) (The court, relying on the Supreme Court's 
contractual view of the commercial arbitration process reflected 
in Volt, Mastrobuono, and First Options of Chicago v. Kaplan, 514 
U. S. 
938, 
(1995), 
the 
court 
held 
valid 
a 
contractual 
provision providing for judicial review of arbitral errors of 
law. The court concluded that the vacatur standards set out in 
Section10(a) 
of 
the 
FAA 
provide 
only the default option in 
circumstances where the parties fail to contractually stipulate 
some alternate criteria for vacatur). 
The 
continuing 
uncertainty 
as 
to 
the 
legal 
propriety 
and 
enforceability 
of 
contractual 
opt-in provisions 
for 
judicial 
review is best demonstrated by the opinion of the Ninth Circuit 
Court of Appeals in LaPine Technology Corp. v. Kyocera, 130 F.3d 
(9th Cir. 1997). The majority opinion in Kyocera framed the 
issue before the court to be: "Is federal court review of an 
arbitration agreement necessarily limited to 
the 
grounds 
set 
forth in the FAA or can the court apply greater scrutiny, if the 
parties have so agreed?" The court held that it was obliged to 
honor the parties' agreement that the arbitrator's award would be 
subject to judicial review for errors of fact or law. It based 
that holding on the contractual view of arbitration articulated 
in Volt and Prima Paint Corp. v. Flood & Conklin Manufacturing 
Co., 388 U.S. 395, 404 n.12 (1967) and their progeny. In doing so 
it observed that body of case 
law 
"makes it clear that the 
primary purpose of the FAA is to ensure enforcement of private 
agreements 
to 
arbitrate, 
in 
accordance 
with 
the 
agreement's 
terms." The Ninth Circuit relied squarely on the opinion of the 
Fifth Circuit in Gateway. The court rejected the "jurisdictional" 
view of 
the 
FAA 
set out 
by 
the 
Seventh Circuit in Chicago 
Typographical Union. 
Caution should be exercised not to over-read the significance of 
Kyocera. 
Judge Fernandez, 
who wrote the opinion of the court, 
merely 
brushed 
aside 
any 
concerns 
pertaining 
to 
contractual 
"creation" of jurisdiction for the federal courts. See also Alan 
Scott Rau, 
Contracting Out of the Arbitration Act, 
American 
Rev. of Intern'l Arb. 225 (1997); Stephen J. Ware, "Opt-In" for 
Judicial 
Review 
of Errors 
of 
Law 
under 
the 
Revised Uniform 
Arbitration Act, 
American Rev. 
of Intern'l Arb. 
(1997) 
(both articles refuting the argument that an "opt-in" 
review 
clause is precluded on the grounds of creating jurisdiction). 
Judge Kozinski, while concurring with Judge Fernandez, expressed 
concern that 
Congress 
has 
not 
authorized 
review of arbitral 
awards 
for errors of 
law or fact, 
but felt it necessary to 
enforce this agreement. Judge Mayer, in a dissent, cautioned that 
the Circuit Court had no authority to review the award in just 
any manner in which the parties contracted. The three opinions in 
Kyocera crystallize the true nature of the debate as to the 
"jurisdictional" dimension of 
the 
issue of 
expanded 
judicial 
review. 
A final significant opinion in the federal Circuit Court of 
Appeals is UHC 
Management Co. 
v. 
Computer Sciences Corp., 
F.3d 992 (8th Cir. 1998). In UHC, 
the Eighth Circuit determined 
whether the contract language clearly established the parties' 
intent to contract for expanded judicial review. The portion of 
the analysis relevant here is that which concerns the propriety 
of contractual agreements providing for expanded judicial review 
beyond that contemplated by Sections 10 and 11 of the FAA. 
The 
court observed that although parties may elect to be governed by 
any rules they wish regarding the arbitration itself, it is not 
clear whether the court can review an arbitration award beyond 
the 
limitations 
of 
FAA 
Sections 
and 
11. 
Congress 
never 
authorized a 
de 
novo 
review of an award on its merits, 
and 
therefore, 
the Court concluded that it had no 
choice but to 
confirm the award when there are no grounds to vacate based on 
the FAA. 
The 
court 
reviewed 
Kyocera 
and 
Gateway 
and 
observed: 
"Notwi thstanding those cases, we do not believe it is a foregone 
conclusion that parties may effectively agree to compel a federal 
court to cast aside Sections 9, 10, and 11 of the FAA." It then 
quoted at length 
from 
Judge 
Mayer's dissent 
in Kyocera 
and 
concluded by emphasizing its view of the differing role of the 
courts in reviewing arbitration awards and judgments from a court 
of law. 
Because the holding of UHC 
was based on the parties' 
intent, the thoughts of the Eighth Circuit regarding this matter 
can be accurately characterized as dictum. However, there is no 
doubt that it, like the Seventh Circuit in Chicago Typographical 
Union, finds contractual provisions requiring the courts to apply 
contractually-created 
standards 
for 
judicial 
review 
of 
arbitration awards to be dubious. 
After Kyocera and 
UHC 
the tally stands at two United States 
Circuit Courts of Appeals approving contractual opt-in provisions 
and 
two 
United States Circuit Courts 
of 
Appeals 
effectively 
rejecting those provisions. 
Given this diversity of 
judicial 
opinion in the federal circuit courts of appeals, it is fair to 
say that law remains in an uncertain state. 
4. 
The 
few 
state 
courts 
that 
have 
addressed 
the 
"creating 
jurisdiction" issue are similarly split. In Dick v. 
Dick, 
N. W. 2d 185, 
(Mich. 
Ct. 
App. 
1994), 
the Michigan Court of 
Appeals characterized the contractual opt-in provision before it 
(which permitted appeal to the courts of "substantive issues" 
pertaining to the arbitrator's award) as an attempt to create "a 
hybrid form of arbitration" that ["did] not comport with the 
requirements of the [Michigan] arbitration statute." The Michigan 
court refused to approve the broadened judicial review and held 
that the parties were instead "required to proceed according to 
the [Michigan arbitration statute]." The appellate court observed 
further that "[t]he parties' agreement to appellate review in 
this case is reminiscent of a mechanism under which the initial 
ruling is by a private judge, not an arbitrator. * * * What the 
parties agreed to is binding arbitration. Thus, 
they are not 
entitled to the type of review [of the merits of the award) they 
agreed to." 
In a similar manner, the Illinois Court of Appeals, in Chicago, 
Southshore and South Bend Railroad v. Northern Indiana Commuter 
Transportation Dist., 682 N.E.2d 156,159 (I11. App. 
3d 1997), 
rev'd on other grounds, 
I11. 
(1998), 
refused to give 
effect to the provision of an arbitration agreement permitting a 
party claiming that the arbitrator's award is based upon an error 
of law "to initiate an action at law 
'I< 
'I< 
'I< 
to determine such 
legal issue." 
In so holding the Illinois Court stated: 
"The 
subject matter jurisdiction of the trial court to 
review an 
arbitration award is limited and circumscribed by statute. The 
parties may not, by agreement or otherwise, expand that limited 
jurisdiction. Judicial review is limited because the parties have 
chosen 
the 
forum 
and 
must 
therefore 
be 
content 
with 
the 
informalities 
and 
possible 
eccentricities 
of 
their 
choice." 
(citing Konicki v. Oak Brook Racquet Club, Inc., 441 N.E.2d 1333 
(I11. Ct. App. 1982». 
In 
NAB 
Constructin 
Corp. 
v. 
Metropolitan 
Transportation 
Authority, 180 A.D. 
436, 
N.Y.S.2d 375 (1992) the Appellate 
Division of the New York Supreme Court, without engaging in any 
substantive 
analysis, 
approved 
application 
of 
a 
contractual 
provision permitting judicial 
review of 
an arbitration award 
"limited to 
the question of 
whether 
or 
not 
the 
[designated 
decision maker under an alternative dispute resolution procedure] 
is arbitrary, capricious or so grossly erroneous to evidence bad 
faith." (citing NAB Constr. Corp. v. Metro. Transp. Auth., 
A.D.2d 301, 562 N.Y.S.2d 44 (1990». This sparse state court case 
law is not a sufficient basis for identifying a trend in either 
direction with regard to the legitimacy of contractual opt-in 
provisions for expanded judicial review. 
5. The negative policy implications and the uncertain case 
law outlined above were substantial reasons why the Committee of 
the Whole adopted a sense-of -the-house resolution at the July, 
1999, 
meeting of the National Conference of Commissioners 
on 
Uniform 
State 
Laws 
not 
to 
include 
expanded 
judicial 
review 
through an opt-in provision. This decision not to include in the 
RUAA 
a 
statutory sanction of expanded judicial review of the 
"opt-in" 
device 
effectively 
leaves 
the 
issue 
of 
the 
legal 
propriety of this means for securing review of awards to the 
developing case law under the FAA and state arbitration statutes. 
Consequently, 
parties 
remain 
free 
to 
agree 
to 
contractual 
provisions for judicial review of challenged awards, on whatever 
grounds and based on whatever standards they deem appropriate 
until the courts finally determine the propriety of such clauses. 
6. 
The 
Drafting 
Committee 
also 
considered 
a 
statutory 
sanction of "opt in" provisions for internal appellate arbitral 
review. Such a section in the statute would be significantly less 
troubling than the sanction of opt-in provisions for judicial 
review - because they do not entangle the courts in reviewing the 
merits 
of 
challenged 
arbitration 
awards. 
Instead, 
appellate 
arbitral review mechanisms merely 
add 
a 
second level to the 
contractual 
arbi tration 
procedure 
that 
permits 
parties 
disappointed with the initial arbitral result to secure a degree 
of protection from the occasional "wrong" arbitration decision. 
See Stephen L. Hayford and Ralph Peeples, Commercial Arbitration 
in Evolution: An Assessment and Call for Dialogue, 10 Ohio St. J. 
on Disp. Res. 405-06 (1995). This approach would not present the 
FAA 
preemption, 
"creating 
jurisdiction," 
and 
line-drawing 
problems identified with the expanded judicial review through an 
opt-in provision. It is also consistent with the Supreme Court's 
contractual view of commercial arbitration in that it preserves 
the parties' agreement to resolve the merits of the controversy 
between them through arbitration, without resort to the courts. 
When parties agree that the decision of an arbitrator will be 
"final and binding," it is implicit that it is the arbitrator's 
interpretation of the contract and the law that they seek, and 
not the legal opinion of a 
court. 
In addition, 
an internal, 
arbitral appeal mechanism is more likely to 
keep arbitration 
decisions out of the courts and maintain the overall goals of 
speed, lower cost, and greater efficiency. 
An internal appellate review wi thin the arbitration system is 
already established by some arbitration organizations. See, e.g., 
CPR Arbitration Appeal Procedure; Jams Comprehensive Arbitration 
Rules 
and 
Procedures, 
R. 
23, 
Optional 
Appeal 
Procedure. 
In 
addition, there are numerous examples of parties creating such 
internal appeals 
mechanisms. 
The Drafting Committee 
concluded 
that 
because 
the 
authority 
to 
contract 
for 
such 
a 
review 
mechanism 
is 
inherent 
and 
such 
provisions 
can 
differ 
significantly depending upon the needs of the parties, there was 
no need to include a specific provision within the statute. 
C. 
Comment 
on 
the 
Possible 
Codification 
of 
the 
"Manifest 
Disreqard of the Law" and the "Public Policy" Grounds For Vacatur 
1. The Drafting Committee also considered the advisability 
of 
adding 
two 
new 
subsections 
to 
Section 
23(a) 
sanctioning 
vacatur of awards that result from a "manifest disregard of the 
law" or for an award that violates "public policy." Neither of 
these two standards is presently codified in the FAA or in any of 
the state arbitration acts. However, all of the federal circuit 
courts of appeals have embraced one or both of these standards in 
commercial arbitration cases. 
See Stephen L. 
Hayford, 
Law 
in 
Disarray: 
Judicial 
Standards 
for 
Vacatur 
of 
Commercial 
Arbitration Awards, 30 Ga. L. Rev. 734 (1996). 
2. 
"Manifest 
disregard 
of 
the 
law" 
is 
the 
seminal 
nonstatutory ground for vacatur of commercial arbitration awards. 
The relevant case law from the federal circuit courts of appeals 
establishes that "a party seeking to vacate an arbitration award 
on the ground of 'manifest disregard of the law' may not proceed 
by merely obj ecting to the results of the arbitration." O. R. 
Securities, Inc. v. Professional Planning Associates, Inc., 857 
F.2d 742, 747 (11th Cir. 1988). "Manifest disregard of the law" 
"clearly means more than [an arbitral] error or misunderstanding 
with respect to the law." Carte Blanche (Singapore) PTE Ltd. v. 
Carte Blanche Int'lo, 888 F.2d 260,265 (2d Cir. 1989) (quoting 
Merr ill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F. 2d 
930, 933 (2d Cir. 1986». 
The numerous other articulations of the "manifest disregard of 
law" standard reflected in the circuit appeals court case law 
reveal its two constituent elements. 
One element looks to the 
result reached in arbitration and evaluates whether it is clearly 
consistent or inconsistent with controlling law. For this element 
to 
be 
satisfied, 
a 
reviewing 
court 
must 
conclude 
that 
the 
arbitrator misapplied the relevant law touching upon the dispute 
before the arbitrator in a manner that constitutes something akin 
to a blatant, gross error of law that is apparent on the face of 
the award. 
The other element of the "manifest disregard of the law" standard 
requires a reviewing court to evaluate the arbitrator's knowledge 
of the relevant law. 
Even if a 
reviewing court finds 
a clear 
error of law, vacatur is warranted under the "manifest disregard 
of the law" ground only if the court is able to conclude that the 
arbitrator 
knew 
the 
correct 
law 
but 
nevertheless 
"made 
a 
conscious decision" to ignore it in fashioning the award. See M&C 
Corp. v. Erwin Behr & Co., 87 F.3d 844, 851 (6th Cir. 1996). For 
a 
full 
discussion 
of 
the 
"manifest 
disregard 
of 
the 
law" 
standard, 
see 
Stephen 
L. 
Hayford, 
Reining 
in 
the 
Manifest 
Disregard of the Law Standard: The Key to Stabilizing the Law of 
Commercial Arbitration, 1999 J. Disp. Resol. 117. 
3. The origin and essence of the "public policy" ground for 
vacatur 
is well 
captured in 
the 
Tenth Circuit's opinion 
in 
Seymour v. Blue Cross/Blue Shield, 988 F.2d 1020,1023 (10th Cir. 
1993). Seymour observed: "[I]n determining whether an arbitration 
award violates public policy, 
a court must assess whether 'the 
specific terms contained in [the contract] violate public policy, 
by creating an 
'explicit conflict with other 
'laws and legal 
precedents. , .. , 
Id. 
at 
1024 
(ci ting United Paperworkers Int' 1 
Union v. Misco, 484 U.S. 29, 43 (1987». 
Like the "manifest disregard of the law" nonstatutory ground, 
vacatur under the "public policy" ground requires something more 
than a mere error or misunderstanding of the relevant law by the 
arbi trator. Under all of the articulations of this nonstatutory 
ground, 
the public policy at issue must be a clearly defined, 
dominant, undisputed rule of law. However, the language employed 
by the various circuits to describe and apply this ground in the 
commercial arbitration milieu reflects two distinct, different 
thresholds for vacatur being used by those courts. First, the 
Tenth Circuit in Seymour and the Eighth Circuit in PaineWebber, 
Inc. v. Argon, 49 F.3d 347 (8th Cir. 1995) contemplate that an 
award 
can 
be 
vacated 
when 
it "explicitly" 
conflicts 
with, 
violates, 
or is contrary to 
the 
subject public policy. 
The 
judicial inquiry under this variant of the "public policy" ground 
obliges the court to delve into the merits of the arbitration 
award in order to ascertain whether the arbitrator's analysis and 
application of the parties' contract or relevant law "violates" 
or "conflicts" with the subject public policy. 
Second, the Eleventh Circuit in Brown v. Rauscher Pierce Refnses, 
Inc., 994 F.2d 775 (11th Cir. 1994) and the Second Circuit In 
Diapulse Corp. of America v. Carba, Ltd., 626 F. 2d 1108 (2d Cir. 
1980) 
trigger 
vacatur 
only 
when 
a 
court 
concludes 
that 
implementation of the arbitral result (typically, effectuation of 
the remedy directed by the arbitrator) compels one of the parties 
to 
violate 
a 
well-defined 
and 
dominant 
public 
policy, 
a 
determination 
which 
does 
not 
require 
a 
reviewing 
court 
to 
evaluate the merits of the arbitration award. Instead, the court 
need only ascertain whether confirmation of, or refusal to vacate 
an arbitration award, and a judicial order directing compliance 
with its terms, will place one or both of the parties to the 
award in violation of the subject public policy. If it would, the 
award must be vacated. If it does not, vacatur is not warranted. 
For a full discussion of the evolution and application of the 
public policy exception in the labor arbitration sphere, 
see 
Stephen L. Hayford and Anthony V. Sinicropi, The Labor Contract 
and External Law: Revisiting the Arbitrator's Scope of Authority, 
1993 J. Disp. Resol. 249. 
4. States have rarely addressed "manifest disregard of the 
law" 
or 
"public policy" 
as 
grounds 
for 
vacatur. 
See, 
e. g. , 
Schoonmacher v. Cummings and Lockwood of Connecticut, 
Conn. 
416, 
A.2d 1017 
(2000) 
(stating that court determines that 
public policy of facilitating clients' access to an attorney of 
their choice requires 
a 
court to conduct 
de 
novo 
review of 
arbi tration decisions involving non-competition agreements among 
attorneys); State of Connecticut v. AFSCME, Council 4, 252 Conn. 
467, 
A.2d 
(2000) 
(concluding that arbitration award 
reinstating employee for admittedly making harassing phone calls 
to 
a 
legislator which 
conduct violated state 
law 
should 
be 
overturned as a violation of clearly expressed public policy). 
One area in which state courts have considered it appropriate to 
review the awards of arbitrators on public-policy grounds is 
family law and, 
J.n particular, statutes or case law requiring 
consideration of the "best interest" of children. 
Faherty v. 
Faherty, 97 N.J. 99, 477 A.2d 1257 (1984) (refusing to defer to 
arbitrator's award affecting child support because of the court's 
"non-delegable, special supervisory function in [the] 
area of 
child 
support" 
that 
warrants 
de 
novo 
review 
whenever 
an 
arbi trator' s 
award of child support could adversely affect the 
substantial 
best 
interests 
of 
the 
child); 
Rakoszynski 
v. 
Rakoszynski, 
N.Y.S.2d 957 (App. Div. 1997) (concluding that 
child support is subject to arbitration but child custody and 
visitation is not); Miller v. Miller, 423 Pa.Super. 162, 172, 620 
A.2d 1161 (1993) (stating that court not bound by arbitrator's 
child custody determination but court must ascertain whether 
arbitral 
award 
is 
"adverse 
to 
the 
best 
interests 
of 
the 
children") . 
5. There are reasons for the RUAA not to embrace either the 
"manifest disregard" or the "public policy" standards of court 
review of arbitral awards. The first is presented by the omission 
from the FAA of either standard. Given that omission, there is a 
very significant question of possible FAA preemption of a such a 
provision in the 
RUAA, 
should the 
Supreme 
Court or 
Congress 
eventually confirm that the four narrow grounds for vacatur set 
out in Section 10(a) of the federal act are the exclusive grounds 
for vacatur. The second reason for not including these vacatur 
grounds is the dilemma in attempting to fashion unambiguous, 
"bright line" tests for these two standards. The case law on both 
vacatur grounds is not just unsettled but also is conflicting and 
indicates further evolution in the courts. 
As 
a 
result, 
the 
Drafting Committee concluded not to add these two grounds for 
vacatur 
in 
the statute. 
A motion to 
include 
the 
ground of 
"manifest 
disregard" 
in 
Section 
23(a) 
was 
defeated 
by 
the 
Committee of the Whole at the July, 2000, meeting of the National 
Conference of Commissioners on Uniform State Laws. 
§8724. 
Modification or correction of award 
1. 
Grounds to modify or correct award. 
Upon motion made 
within 90 days after the movant receives notice of the award 
pursuant to section 8719 or within 90 
days after the movant 
receives notice of a modified or corrected award pursuant to 
section 8720, the court shall modify or correct the award if: 
A. 
There was an evident mathematical miscalculation or an 
evident mistake in the description of a person, thing or 
property referred to in the award; 
B. 
The 
arbitrator 
has 
made 
an 
award 
on 
a 
claim 
not 
submi tted to the arbitrator and the award may be corrected 
without affecting the merits of the decision upon the claims 
submitted; or 
C. 
The award is imperfect in a matter of form not affecting 
the merits of the decision on the claims submitted. 
2. 
Confirmation 
of 
award. 
If 
a 
motion 
made 
under 
subsection 1 is granted, the court shall modify or correct and 
confirm the award as modified or corrected. 
Otherwise, unless a 
motion to vacate is pending, the court shall confirm the award. 
3. 
Joinder of motions. 
A motion to modify or correct an 
award pursuant to this section may be joined with a motion to 
vacate the award. 
§S725. 
Judgment on award: attorney's fees and litigation expenses 
1. 
Entry of judgment. 
Upon granting an order confirming, 
vacating without directing a rehearing, modifying or correcting 
an 
award, 
the 
court 
shall 
enter 
a 
judgment 
in 
conformity 
therewith. 
The judgment may be recorded, docketed and enforced 
as any other judgment in a civil action. 
2. 
Reasonable costs. 
A court may allow reasonable costs of 
the motion and subsequent judicial proceedings. 
3. 
Reasonable attorney's fees and eKPenses. 
On application 
of a prevailing party to a contested judicial proceeding under 
section 
8722, 
8723 
or 
8724, 
the 
court 
may 
add 
reasonable 
attorney's 
fees 
and 
other 
reasonable 
expenses 
of 
litigation 
incurred in a judicial proceeding after the award is made to a 
judgment 
confirming, 
vacating without directing 
a 
rehearing, 
modifying or correcting an award. 
Uniform Comment 
1. The same sections in the UAA 
(Sections 14, 15) 
and a 
similar section in the FAA (Section 13 regarding judgments and 
docketing) as well as in RUAA Section 24(a) included court orders 
confirming, 
modifying 
or 
correcting 
awards 
but 
not 
vacating 
awards. There is no explanation in the legislative history or the 
case 
law under the 
UAA 
or the 
FAA 
for 
the omission of the 
inclusion of vacatur in reference to 
judgments 
and recording 
judgments. 
The indication from the cases is that courts that 
vacate 
arbitration 
awards 
refer 
to 
the 
vacatur 
orders 
as 
judgments. In its version of the UAA Arizona states that courts 
that vacate awards should enter a "judgment." Ariz. Rev. Stat. § 
12-1512 (1994). There are other state appellate decisions which 
refer 
to 
vacatur 
orders 
as 
"judgments." 
Judith 
v. 
Graphic 
Communicats. 
Intn'l Union, 
A.2d 
890, 
(D.C. 
Ct. 
App. 
1999); Guiderv.McIntosh, 
Ill. App. 3d 935,689 N.E.2d 231, 233, 
Ill.Dec. 
(1997); 
FCR 
Greensboro, 
Inc. 
v. 
C 
& 
M 
Investments of High Point, Inc., 
N.C.App. 
575, 
S.E.2d 
292, 
295, cert. denied, 
N.C. 
648, 
S.E.2d 510 
(1995); 
Rademaker v. Atlas Assur Co., 
Ohio App. 15, 120 N. E. 2d 592, 
(1954). Section 25(a) and (c) includes a provision to enter 
judgment 
or 
award 
attorney's 
fees 
when 
there 
is 
an 
order 
"vacating without directing 
a 
rehearing." 
The 
terms 
"without 
directing a rehearing" were added because an order of vacatur is 
a final one and subject to appeal under Section 28(a)(5) if the 
court does not order a rehearing under Section 23(c). 
2. Some of the language in UAA Section 15 on judgment rolls 
and docketing has been rewritten and incorporated into Section 
(a) that the judgment may be "recorded, docketed, and enforced 
as any other judgment in a civil action" both to delete what in 
some 
States 
would 
be 
considered archaic 
procedure 
under 
UAA 
Section 15 
and to allow States more flexibility in recording 
judgments according to the procedures in their States. 
3. Section 25(c) promotes the statutory policy of finality 
of arbitration awards 
by 
adding 
a 
provision for 
recovery of 
reasonable attorney's fees and reasonable expenses of litigation 
to prevailing parties in contested judicial actions to confirm, 
vacate, modify or correct an award. Potential liability for the 
opposing parties' post-award litigation expenditures will tend to 
discourage all but the most meritorious challenges of arbitration 
awards. 
I f 
a party prevails in a contested judicial proceeding 
over 
an 
arbitration 
award, 
Section 
25(c) 
allows 
the 
court 
discretion to 
award attorney's 
fees 
and litigation expenses. 
Blitz v. 
Bath Isaac Adas Israel Congregation, 
Md. 
31, 
A.2d 912 (1998) (permitting award of attorney's fees in both the 
trial 
and 
appeal 
of 
an 
action 
to 
confirm 
and 
enforce 
an 
arbitration award against party who refused to comply with it). 
4. The right to recover post-award litigation expenses does 
not 
apply if a 
party's resistance to the 
award is entirely 
passive 
but 
only 
where 
there 
is 
"a 
contested 
judicial 
proceeding." The situation of an uncontested judicial proceeding, 
e.g., to confirm an arbitration award, will most often occur when 
a party simply cannot pay an amount awarded. If a party lacks the 
ability to comply with the award and does not resist a motion to 
confirm 
the 
award, 
the 
subsection 
does 
not 
impose 
further 
liability for the prevailing party's fees and expenses. 
These 
expendi tures should be nominal in a situation in which a motion 
to confirm is made but not opposed. This is consistent with the 
general policy of most States, which does not allow a prevailing 
party to recover legal fees and most expenses associated with 
executing a judgment. 
5. A court has discretion to award fees under Section 25(c). 
Courts acting under similar language 
have not been reluctant to exercise 
equitable considerations into account. 
in fee-shifting 
their discretion 
statutes 
to take 
6. 
Section 25(c) 
is 
a 
default rule only because it is 
waivable under Section 4 (a). If the parties wish to contract for 
a different rule, they remain free to do so. 
§8726. 
Jurisdiction 
1. 
Jurisdiction to enforce agreement. 
A court of this 
State having jurisdiction over the controversy and the parties 
may enforce an agreement to arbitrate. 
2. 
Exclusive 
jurisdiction. 
An 
agreement 
to 
arbitrate 
providing 
for 
arbitration 
in 
this 
State 
confers 
exclusive 
jurisdiction on the court to enter judgment on an award under 
this chapter. 
Uniform Comment 
1. 
The term "court" 
1S 
now in the definition section at 
Section 1(3). 
2. 
Section 
26(a) 
deals 
with 
the 
enforceability 
of 
arbitration agreements. A person may seek to enforce an agreement 
to arbitrate in accordance with Sections 6 and 7 in a State that 
has 
personal 
and 
subject 
matter 
jurisdiction. 
For 
example, 
consider a manufacturer that is a 
New York corporation and a 
consumer who resides in Missouri have an arbitration agreement 
that provides for arbitration in the State of New York. 
I f 
the 
consumer challenges the enforceability of the arbitration clause, 
the consumer could do so in a Missouri court that would otherwise 
have subject matter and personal jurisdiction over the New York 
corporation. 
3. Section 26(b) follows the almost unanimous holdings of 
courts under the present, same language of Section 17 of the UAA 
that if the parties in their agreement designate a place for the 
arbitration 
proceeding, 
then 
that 
State 
has 
exclusive 
jurisdiction to determine the validity of an arbitrator's award 
in accordance with Section 25. The rationale of these courts has 
been to prevent forum-shopping in confirmation proceedings and to 
allow party 
autonomy 
in the 
choice 
of 
the 
location of 
the 
arbitration and its subsequent confirmation proceeding. State ex 
reI. Tri-County Constr. Co. v. Marsh, 
S.W.2d 148, 152 (Mo. 
Ct. App. 1984) 
( .. [E ]very state that has considered the question 
of jurisdiction to confirm the award has focused on the place of 
arbitration and not the locus of the contract. * * * [T]he place 
of contracting is not always, or even frequently, the convenient 
location 
for 
arbitration. 
Modern 
business 
operates 
in 
a 
multi-state environment, and the parties should be permitted to 
choose 
the 
place 
of 
arbitration 
and 
confirmation 
upon 
consideration of convenience, and not upon artificial concepts of 
the place of contracting."); see also General Elec. Co. v. Star 
Technologies, Inc., 
1996 
WL 
377028 (Del. Ch., June 13, 
1996); 
Stephanie's v. Ultracashmere House LTD, 
Ill.App. 3d 654, 
N.E.2d 979, 54 Ill.Dec. 229 (1981); Tru Green Corp. v. Sampson, 
S.W.2d 951 (Ky. App. 1991); Kearsarge Metallurgical Corp. v. 
Peerless Ins. Co., 383 Mass. 162, 418 N.E.2d 580 (1981). 
4. 
4(b) (1) 
dispute 
It should be 
noted that in 
accordance with 
Section 
parties can waive the requirements of Section 26 after a 
arises under an arbitration agreement. 
§8727. 
Venue 
A motion pursuant to section 8705 must be 
made 
~n the 
Superior Court of the county in which the agreement to arbitrate 
specifies the arbitration hearing 
~s to be held or, 
if the 
hearing has been held, in the Superior Court of the county in 
which it was held. 
Otherwise, the motion may be made in the 
Superior Court of any county in which an adverse party resides or 
has a place of business or, if no adverse party has a residence 
or place of business in this State, in the Superior Court of any 
county in this State. 
All subseguent motions must be made in the 
court hearing the initial motion unless 
the court otherwise 
directs. 
Uniform Comment 
1. 
Oftentimes the parties in their arbitration agreement 
determine 
the 
location 
of 
the 
arbitration 
hearing. 
If 
the 
arbi tration clause does not provide for a location, Section 15 
allows the arbitrator to set the location of the hearing. The 
venue provisions in this section give priority to the county in 
which the arbitration hearing was held. 
2. 
Choice-of-forum 
clauses 
and, 
as 
a 
result, 
venue 
provisions 
have 
the potential 
to 
cause 
problems 
in adhesion 
si tuations. It should be noted that courts, in determining the 
enforceability of arbitration agreements under provisions such as 
Section 6(a) have voided as unconscionable clauses in arbitration 
agreements 
that 
require 
persons 
to 
arbitrate 
in 
distant 
locations. See, e.g., Brower v. Gateway 2000, Inc., 246 A.D. 246, 
N.Y.S.2d 569 (1998) (holding unconscionable on ground of cost 
a 
clause which both required computer purchasers to arbitrate 
disputes in Chicago, 
Illinois, 
and also 
required arbitration 
according to rules of the International Chamber of Commerce which 
impose high administrative costs); Patterson v. ITT Consumer Fin. 
Corp., 
Cal. 
App. 
4th 1659, 
Cal. 
Rptr. 
2d 
(1993) 
(refusing to enforce arbitration clause 
imposed 
by 
financing 
corporation on State's consumers that required arbitration to be 
heard 
in 
Minneapolis, 
Minnesota, 
and 
required 
payment 
of 
substantial filing fees). 
§8728. 
Appeals 
l. Subject of appeal. 
An appeal may be taken from: 
A. 
An order denying a motion to compel arbitration; 
B. 
An order granting a motion to stay arbitration; 
C. 
An order confirming or denying confirmation of an award; 
D. 
An order modifying or correcting an award; 
E. 
An 
order 
vacating 
an 
award 
without 
directing 
a 
rehearing; or 
F. 
A final judgment entered pursuant to this chapter. 
2. 
Manner of appeal. 
An appeal under this section must be 
taken as from an order or a judgment in a civil action. 
§8729. 
Uniformity of application and construction 
In applying and construina this uniform Act, consideration 
must be given to the need to promote uniformity of the law with 
respect to its subject matter among states that enact it. 
§8730. 
Relationship to Electronic Signatures in Global and 
National Commerce Act 
The provisions of this chapter governing the legal effect, 
validi ty and enforceability of electronic records or electronic 
signatures 
and of 
contracts 
performed with the 
use 
of 
such 
records or signatures, conform to the requirements of Section 102 
of 
the 
federal 
Electronic Signatures 
in Global 
and National 
Commerce Act, 15 United States Code, Section 7001, et seq. 
Uniform Connent 
Section 30 is intended to conform the provisions allowing 
electronic signatures in Sections 1(3)(B) and 19 of the RUAA with 
the Electronic Signatures in Global and National Commerce Act, 15 
U.S.C. §§ 7001, 7002 (2000). 
§873l. 
Savings clause 
This 
chapter 
does 
not 
affect 
an 
action 
or 
proceeding 
commenced or right accrued before January 1, 2004. 
Subject to 
section 8703, 
an arbitration agreement made before January 1, 
2004 is governed by the Uniform Arbitration Act, former chapter 
706. 
Uniform Conment 
(This is section 33 of the Uniform Act.) 
1. This section continues the prior law under the UAA with 
respect to a pending action or proceeding or right accrued until 
the UAA is repealed in accordance with Sections 31 and 3(a) and 
(c) or the parties agree in a record under Section 3(b) to apply 
the RUAA to an arbitration agreement made under the UAA. Because 
courts generally apply the law that exists at the time an action 
is commenced, in many circumstances the new law would displace 
the old law, but for this section. 
2. While most States have general savings statutes, these 
are often quite broad. The intent of Section 33 is to follow Rule 
of the NCCUSL Procedural and Drafting Manual which states that 
a specific savings clause should be included ln a statute "to 
preserve a law that the Act supersedes and which otherwise would 
apply with respect to described transactions and events that 
occur before the Act takes effect to minimize disruption inherent 
in change from the old to the new law." The Comment to Rule 19 
uses as an example statutes where there is a transition period 
like the Uniform Partnership Act upon which Sections 3, 31, 32, 
and 33 of the RUAA are based. 
§S732. 
Short title 
This chapter may be known and cited as "the Revised Uniform 
Arbitration Act." 
Sec. A-3. Effective date. 
This Part takes effect January 1, 
2004. 
PARTB 
Sec. B-1. 10 MRS A §1294, sub-§3, as enacted by PL 1995, c. 
462, Pt. A, §22 and affected by §23, is amended to read: 
3. 
Arbitration. 
Nothing contained in this section may bar 
the right of an agreement to provide for binding arbitration of 
disputes. 
Any arbitration must be consistent with the provisions 
of this chapter and Title 14, chapter 1Qe 755, and the place of 
any arbitration must be in the city or county in which the dealer 
maintains the dealer's principal place of business in the State. 
Sec. B-2. 10 MRSA §1440, sub-§4, as enacted by PL 1997, c. 
427, §2, is amended to read: 
4. 
Arbitration. 
If a dispute arises under this chapter, 
the dealer 
may 
voluntarily agree 
to 
submit that dispute 
to 
binding or nonbinding arbitration. 
An 
arbitration proceeding 
must be voluntary, initiated by serving a written request for 
arbitration on the other party and conducted under the provisions 
of the Maine Revised Uniform Arbitration Act. 
Sec. B-3. 14 MRSA §6017. sub-§4, as enacted by PL 1999, c. 
192, §2, is amended to read: 
4. 
Arbitration. 
A commercial landlord and tenant may agree 
in their lease or in a 
separate agreement to arbitration of 
disputes as to termination, the right of possession arising under 
the lease between landlord and tenant and amounts owed for rent 
before an arbitrator or arbitrators chosen in advance pursuant to 
the 
lease or 
other written 
agreement. 
The 
decision of 
the 
arbitrator is final. 
If the arbitrator rules in favor of the 
landlord, the landlord may, by presentation of an attested copy 
of 
the 
arbitrator's 
decision, 
and 
after 
docketing 
of 
the 
arbitrator's decision by the Superior Court, immediately obtain a 
writ of possession from the clerk of the Superior Court. 
The 
arbi trator' s decision may be stayed or appealed from only upon 
such 
grounds 
as 
generally 
lie 
for 
stay 
or 
appeal 
of 
an 
arbitration decision pursuant to 
tRe-~~~~~-~~~~~~~-AetT 
±itle-14T-seetien-§949 sections 8707 and 8728. 
Sec. B-4. 26 MRSA §937, last 1[, as enacted by PL 1985, c. 294, 
§§2 and 3, is amended to read: 
The board may, at any time in the arbitration process, seek 
a 
stipulated 
settlement 
of 
the 
matter 
submitted 
to it for 
resolution provided that settlement is approved by the parties to 
the dispute. 
Except 
as 
provided in section 
972, 
arbitration 
proceedings sRall-be are subject to the review provisions of the 
Revised Uniform Arbitration ActT-±itle-14T-eRapte~-1ge. 
Sec. B·5. 26 MRS A §1333, as enacted by PL 1997, c. 472, §L 
is amended to read: 
§1333. Review 
Either party may seek a review of a binding 
an 
arbitration panel 
or 
arbitrator 
pursuant 
Uniform Arbitration ActT-±itle-l4T-bbapte~-1Ge. 
determination by 
to 
the 
Revised 
Sec. B·6. 28·A MRSA §1457, sub·§2, as enacted by PL 1987, c. 
45, Pt. A, §4, is amended to read: 
2. 
Neutral arbitrator. 
If the certificate of 
approval 
holder and the wholesale licensee are unable to agree on the 
reasonable compensation to be paid for the value of the wholesale 
licensee's business, 
as 
defined in subsection 
1, 
they shall 
submit 
the 
matter 
to 
a 
neutral 
arbitrator 
selected 
by 
the 
parties, or, if they eaaaet can not agree, by the Chief Justice 
of the Supreme Judicial Court. 
The costs of the arbitration 
sball must be paid 112 by the wholesale licensee and 112 by the 
certificate of 
approval holder 
e~L otherwise 
the arbitration 
proceeding sba±±--Be is governed by the Maiae Revised Uniform 
Arbitration Act. 
Sec. B· 7. Effective date. 
This Part takes effect January 1, 
2004. 
]0 
SUMMARY 
Part A replaces the Uniform Arbitration Act with the Revised 
Uniform Arbitration Act, approved by the National Conference of 
Commissioners on Uniform State Laws in 2000. 
Details of the new law are contained in the Prefatory Note 
and the Uniform Comments following each section. 
This Act takes effect January 1, 2004. 
Part B corrects cross-references.