January 2013 Bar Bulletin
 
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January 2013 Bar Bulletin

Arbitrator's Powers: Expansive, but Open to Challenge if Exceeded

By Phil Cutler

 

Like judges, arbitrators have broad powers when managing and deciding cases. But their powers are limited by the agreement to arbitrate from which those powers are derived, and state and federal arbitration law or, in mandatory arbitrations conducted under RCW Chapter 7.06 and the MARs, by that statute and those rules.

The Federal Arbitration Act (9 U.S.C. 1–16) declares a national policy in favor of arbitration where the parties have agreed to arbitration, and governs arbitration in cases involving interstate or maritime commerce.1 For cases that fall within its reach, the FAA governs all aspects of arbitration procedure and preempts inconsistent state law.2 However, as the FAA is silent on most issues related to an arbitrator's powers,3 state law fills in those gaps and will govern as long as it does not conflict with or undermine the FAA's policy favoring arbitration.

Arbitration law in Washington was substantially changed in 2005 when the Legislature repealed RCW Chapter 7.04 and, in its place, adopted the Washington Uniform Arbitration Act, RCW Chapter 7.04A. The WUAA is modeled after, and practically a verbatim copy of, the Revised Uniform Arbitration Act promulgated by the National Commissioners on Uniform State Laws in late 2000.4

For arbitrations to which the WUAA applies, the arbitrator, unless validly limited by the parties' arbitration agreement5 or the rules applicable to the proceeding:

  • "[S]hall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable." RCW 7.04A.060(3).6
  • "[M]ay issue such orders for provisional remedies ... as the arbitrator 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." RCW 7.04A.080(2).
  • "[M]ay conduct the arbitration in such manner as the arbitrator considers appropriate so as to aid in the fair and expeditious disposition of the proceeding" and has power to "hold conferences ... before the hearing and to determine the admissibility, relevance, materiality, and weight of any evidence." RCW 7.04A.150(1).
  • "[M]ay decide a request for summary disposition of a claim or particular issue by agreement of all interested parties or upon request of one party ... if that party gives notice to all other parties ... and the other parties have a reasonable opportunity to respond." RCW 7.04A.150(2).
  • "[M]ay hear and decide the controversy upon the evidence produced although a party who was duly notified of the arbitration proceeding did not appear." RCW 7.04A.150(3).
  • "[M]ay 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." RCW 7.04A.170(2).
  • "[M]ay [on request of a party to or witness in an arbitration proceeding] permit a deposition of any witness, including a witness who cannot be subpoenaed for or is unable to attend a hearing, to be taken under conditions determined by the arbitrator for use as evidence in order to make the proceeding fair, expeditious, and cost effective." RCW 7.04A.170(2).7

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