(Canadian law references supplied by Frédéric Bachand, mcgill/arbitration/law)

1. Arbitral Agreements and Awardsby Thomas CarbonneauOrlando Distinguished Professor, Penn State Law (Canadian law references supplied by Frédéric Bachand, www.mcgill.ca/arbitration/law)

2. Finality of Arbitral Awards Advantage of arbitration: highly restrained appeal Contemporary statutory regulation have curtailed arbitral review: UNCITRAL Model Law on ICA New York Arbitration Convention U.S. Arbitration Act (FAA) French law on arbitration 1996 UK Arbitration Act

3. Little enthusiasm among States for aggressive policing of awards Decisional sovereignty of arbitrator is well-established Arbitrator also controls the arbitral procedure Arbitrator is sovereign as to construction of contract and arbitration agreement Courts only decide whether arbitration agreement exists

4. Basis for Judicial Supervision Bribery or corruption Failure to disclose conflicts of interest Fundamental procedural unfairness Excess of authority Failure to follow the agreement

5. Manifest Disregard of the Law Hall Street Associates v. Mattel Allows court to vacate award for alleged error of law Arose in Wilko v. Swan (collective bargaining arbitration) Imported into statutory law (FAA s. 10) Conflicts with statutory rationale Allows courts to disagree with arbitrator’s reasoning

6. Correction of Awards Evident mistakes, apparent on the face of award Action to clarify awards Court-dictated order to the arbitral tribunal Party-requested clarification Post-rendition appeal Imposition of damages to sanction frivolous appeal (11th Cir.)

7. USSC – too much litigation about arbitration Federal policy to never decide against arbitration Challenge to adversarial representation

8. Judicial Policy Similar in the U.S. and Canada U.S.: Moses Cone, Keating, Byrd Canada: Dell v. Union des Consommateurs Desputeaux v. Editions Chouette Freedom of Contract is controlling legal principle U.S.: Volt Info. Sciences Canada: La Laurentienne-vie v. L’Empire

9. Arbitrator determinations are essentially sovereign (The Gazette v. Blondin) Even erroneous application of law will not entail nullificiation (Desputeaux, Gingras v. Entreprises FGS Inc) Action to set aside award must be filed within 3 month period (Standard Life v. Fagan)

10. Pitfalls – Agreement Clarity Complexity Expression of party intent Pathological Provisions Agreements must be “implementable” How much detail should there be? Use of standard clauses Brief and clear expression of intent Other pitfalls

11. Pitfalls - Proceedings Who is in charge? Damages allowed Kaplan and kompetenz-kompentenz Use of experts Discovery Cross-examination Time Limits Trust arbitrators? Trust administrators?

12. Pitfalls – Awards Reasons? Party Consultation? Type of Relief? Deadlines and time-limits Place of enforcement

13. Arbitration Agreements Writing Final and binding process (Zodiak v. Polish People’s Republic) Liberal construction (Laurentienne –vie v. Empire) Few subject matter constraints (even bankruptcy) Consumer and adhesion contracts (Dell)

14. Agreement re Arbitrators Independent and Impartial Neutrality (US: Commonwealth Coatings; Canada: Desbois v. Industries A.C. Davie) Judicial immunity of arbitrators No arbitrator malpractice (AAA arbitration rules, Zittrer v. Sport Maska Inc) Party discretion controls selection of arbitrators and character of proceedings

15. General Points Need for judicial support and cooperation Provision for internal arbitral appeal Selection of arbitrators is critical Market vs. statist arbitration Adhesionary Arbitration Congressional partisan hostility to arbitration