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

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60 THE JOURNAL OF AMERICAN ARBITRATION [<strong>Vol</strong>. 5:1 the decision, and the ability of the court to review a decision all are considerations for the kind of written award issued by an arbitrator. An arbitration award which fails to state the basis for the award cannot serve as precedent. 230 An award is beyond a court’s ability to review if the arbitrator does not state the basis for his/her award. 231 One concern is “written opinions might open avenues for attack on the award by the losing party.” 232 So, common wisdom in the world of arbitration is the “less said the better.” 233 C. Procedural Requirements for a Decision The AAA sets forth certain procedural rules that are to be followed by the arbitrators in making their award. The rule states: The award must be signed by the arbitrators and, under the laws of some states, be notarized or witnessed. If two or more arbitrators are involved, the award must have the signatures of a majority. Arbitrators usually meet after the last hearing to agree on the award. They might disagree on some points. Their conversations should be kept confidential. No arbitrator should disclose what any other member of the panel said during these conferences. The majority rules, but any arbitrator who disagrees may note a dissent on the award form or elect not to sign the award. 234 D. Sending the Decision to Reporting Bodies Arbitration decisions do not have precedential value. 235 They are 230. See Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 991 F.2d 141, 147 (4th Cir. 1993). 231. Reichman v. Creative Real Estate Consultants, 476 F. Supp. 1276, 1282 (D.C.N.Y. 1979) (stating that “the task of a reviewing court, especially one confronted by a claim of manifest disregard of the law, is made more difficult in cases where no reasons are given by the arbitrator”). 232. American Arbitration Association, A Guide for Commercial Arbitrators (2004), available at http://www.adr.org/sp.asp?id=22016 (last visited Dec. 8, 2005). 233. Herbert L. Marx Jr., Who Are Labor Arbitration Opinions Written For? And Other Musings About Award Writing, 58 DISP. RESOL. J. 22, 23 (2003). 234. American Arbitration Association, supra note 232. 235. Peoples Sec. Life Ins. Co., 991 F.2d at 147 (stating that “arbitration awards have no precedential value”). While arbitration awards theoretically have no precedential value because of the sui generis nature of arbitration, some are nonetheless published, with a resulting impact on future arbitral proceedings. For a discussion of the pros and cons of published awards, see ELKOURI & ELKOURI, supra note 35, at 568-73.
<strong>2006</strong>] ARBITRATION: THE BASICS 61 “sui generis.” 236 Yet published decisions are useful. A published decision can provide insight into the factual, legal, and decision-making reasoning of the arbitrator. Arbitrators with similar cases can use the rationale to assist in the determination of the present case. So, in fact, they do have persuasive value. Reporting bodies, such as the Bureau of National Affairs, 237 the Commerce Clearing House, 238 the AAA, 239 and many state agencies publish arbitration decisions with names of the parties redacted to assist advocates and arbitrators in understanding the development of the body of arbitrable law. While arbitration decisions do not set precedent, they are nevertheless useful in understanding how arbitrators determine disputes such as past practice, discipline, contract interpretation, and arbitrability. It is not unusual for arbitrators in labor disputes to cite other arbitration decisions in their awards. 240 E. Ability to Appeal an Arbitration Decision It is very difficult to get a court to overturn an arbitration decision. Arbitration decisions are regarded as final and binding. 241 Courts are reluctant to review the merits of an arbitration award. 242 Parties do, however, have limited ability to appeal to a court to vacate an arbitrator’s decision. Some agencies even allow a second arbitration panel as a 236. Amalgamated Meat Cutters v. Neuhoff Bros. Packers, Inc., 481 F.2d 817, 820 (5th Cir. 1973) (citing Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 442 F.2d 1234, 1238 (D.C. Cir. 1971) (holding “we are obliged to recognize that arbitration proceedings are sui generis”). 237. The Bureau of National Affairs, Inc. publishes labor arbitration awards in the Labor Arbitration Reporter ® . See http://www.bna.com/products/labor/lelw.htm (2005). 238. The Commerce Clearing House publishes securities arbitration awards, see http://scan.cch.com/ (2005), and labor arbitration awards, see http://hr.cch.com/ (2005). 239. The AAA maintains databases of arbitration awards it issues. See http://www.adr.org/AAAawards/ (2005). 240. NCR Corp., E & M-Wichita v. Int’l Ass’n of Machinists & Aerospace Workers, Dist., 906 F.2d 1499, 1505 (10th Cir. 1990) (recognizing that arbitrator, in interpreting a contract, may look to “the negotiating and contractual history of the parties, past practices, the common law of the shop, and a number of arbitration, NLRB, and judicial decisions providing definition to the key terms”). 241. Hill & Sinicropi, supra note 200, at 472. 242. United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960) (recognizing that “[t]he federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards”).
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