2006/Vol. 5 No.1 - Hamline Law - Hamline University

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46 THE JOURNAL OF AMERICAN ARBITRATION [<strong>Vol</strong>. 5:1 The site of ad-hoc arbitration will most often be the arbitrator’s office, the office of one of the parties, or a rented conference room. 184 Given the nature of the arbitration process, additional factors should be taken into consideration in determining the most convenient location for an arbitration, including neutrality, formality, and cost. Because the parties may choose any convenient place, neutrality of the situs of the arbitration can be at issue. Some advocates prefer that the hearing always be held in a neutral place. To other advocates, neutrality of place is not important, as long as the location is convenient to all parties. Cost is an important consideration, keeping in mind that the purpose of arbitration is to reduce the time and cost spent on resolving the dispute. 185 To reduce time and travel expenses, parties can choose a forum that is close to the parties. If the parties rent a conference room in a hotel, they will split the cost of the room unless the contract specifies something different. Formality can be an issue. The environment should be conducive to a dignified arbitration hearing; there is a danger if the place is too informal. For example, “arbitrations held in hotel rooms, offices, union halls, or other places associated with non-judicial business can increase the likelihood that the proceeding will degenerate from a true hearing into a free form meeting.” 186 Generally, parties to a dispute are responsible for deciding on a location that is acceptable to both parties. As an alternative, parties may choose to have the arbitration administered by an agency, such as the AAA; in which case, a Case Manager will be assigned to the arbitration proceedings and will talk with the parties and reach a decision as to the location, time, and date of the arbitration hearing. 187 Factors the AAA 184. Glen Spencer, Administered vs. Non-administered Arbitration, 54 DISP. RESOL. J. 42, 46 (Feb. 1999). In ad-hoc arbitration: [T]he arbitrator’s offices are most commonly used. Sometimes, hotel conference rooms are rented for the hearing when no other option exists. From time to time, parties complain that the arbitrator conducts too much other business during the hearing day, thus delaying the proceedings. The likelihood of this happening is highest if the arbitrator is hosting the hearing at his or her office. Id. 185. Edward A. Purcell, Jr., Geography as a Litigation Weapon: Consumers, Forum-Selection Clauses, and the Rehnquist Court, 40 UCLA L. REV. 423, 445-49 (1992). 186. Hart & Wolf, supra note 107, at 1441. 187. Michael D. Young, Endispute Rules and Procedures, in LITIGATION 1993, at 241, 245 (PLI Litig. & Admin. Practice, Course Handbook Series No. H4-5177,
<strong>2006</strong>] ARBITRATION: THE BASICS 47 considers important in determining an appropriate place for an arbitration proceeding include: (1) [T]he convenience of the location (e.g., availability of witnesses, local counsel, transportation, hotels, meeting facilities, court reporters, etc.); (2) the available pool of qualified arbitrators within the geographical area; and (3) the applicable procedural and substantive law. Of particular importance in international cases is the applicability of a convention providing for recognition and enforcement of arbitral agreements and awards and the arbitration regime at the chosen site. 188 B. Marking Exhibits and Other Preliminary Matters Because arbitration is intended to be less formal than litigation, the Federal Rules of Evidence and the Federal Rules of Civil Procedure applicable in a trial do not apply; unless, of course, the parties agree they should apply. It is typical for the advocates to come to the hearing with exhibits for the arbitration hearing. It is efficient to pre-mark the exhibits in advance. For example, the claimant’s exhibits may be marked C1- C20, while the respondent’s exhibits may be marked R1-R12. Before the hearing, the parties should agree on joint exhibits, J1-J5. The premarking of exhibits and the agreement on joint exhibits makes the hearing more efficient, a key objective in arbitration. Once the hearing begins, proper foundation should be laid, after which the advocate should 1993). 188. AAA, Drafting Arbitration Clauses, supra note 45. Without recognition of an award in an international jurisdiction, the award obviously can not be enforced. International recognition and enforcement are facilitated by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention): [The Convention] was prepared and entered into force in 1959. As of October 1994, ratifications and accessions to the New York Convention totaled 101 countries. The New York Convention provides for mutual recognition and enforcement of arbitral awards by contracting states, and limits the defenses that may be raised in opposition to the confirmation of an award, in an attempt to eliminate duplicative litigation following an arbitration. The New York Convention applies to awards made in the territory of a state other than the state in which the recognition and enforcement of the award is sought, as well as to “arbitral awards not considered as domestic awards in the state where the recognition and enforcement are sought.” Slate, supra note 122, at 44.
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