In 2013, the most significant amendments to the AAA Commercial Arbitration Rules in 14 years came into effect. Despite their wide scope, the amendments will probably be noted chiefly for enacting the Optional Appellate Arbitration Rules.
Optional Appellate Arbitration Rules
The Optional Appellate Arbitration Rules are available to users of the AAA and its international division, the ICDR. In either case, when both parties agree in writing, an underlying award can undergo a full review, akin to that which the second instance dispenses in court cases. This review will be conducted by an appeal tribunal, comprising three members appointed under the AAA’s list system. Their award is deemed final, replacing the underlying (first instance) award, and thus still subject to court challenges as the laws of the seat of the arbitration may allow.
The AAA Rules
The amendments are multifaceted.
Mediation is now expected in all AAA commercial cases for any claim or counterclaim over US$75,000. The mediation will take place ‘concurrently with’ the arbitration and must not delay the proceedings. Parties do have the right to decline to participate in the mediation. (Rule R-9)
There is a new (more demanding) disclosure standard: arbitrators must reveal ‘any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives.’ (Rule R-16).
On the other hand, parties themselves now have the burden of disclosing circumstances they are aware of that may pose an arbitrator conflict. Failure to do so may result in a waiver of that party’s right to object to the appointment of the arbitrator. (Rule R-17)
The arbitrator has the authority to ‘allow the filing of and make rulings upon a dispositive motion’. This discretion is not unfettered. The arbitrator may only allow a dispositive motion where it has been shown that the motion is likely to succeed and narrow the issues in the case. (Rule R-33)
Emergency relief proceedings are now an opt-out, as in the ICDR system. In other words, unless the parties to an AAA commercial arbitration otherwise agree in writing, any of them can appoint an emergency arbitrator to entertain interim relief applications that cannot wait for the appointment of the tribunal proper.
An AAA commercial arbitrator can impose sanctions, upon application, ‘where a party fails to comply with its obligations under these rules or with an order of the arbitrator’ but may not enter a default award as a sanction. Where a sanction ‘limits any party’s participation in the arbitration or results in an adverse determination of an issue or issues’, the arbitrator must require the applicant to provide evidence and legal basis for such a sanction. The arbitrator must also provide a written opinion setting forth the reasons for sanctions. (Rule R-58)
Early case management
There is significant emphasis on early case management, fleshing out the content of the preliminary (or scheduling) hearing. (Rule R-21)
The rules now account for e-discovery and empower the arbitrator to ‘require the parties, when documents to be exchanged or produced are maintained in electronic form, to make such documents available in the form most convenient and economical for the party in possession of such documents’. (Rule R-22).
Seat of arbitration
When an arbitration clause does not name the place of arbitration, the AAA may (as in the ICDR system) determine the issue – subject to the final review and decision of the arbitrator. (Rule R-10)
Many deadlines have been changed from 15 to 14 calendar days. (Examples include the period in which to answer the arbitration notice or counterclaim, or to challenge arbitrators.)