April 02, 2015

The Strange Career of the Reasoned Award

The Yankees win!! The….Yankees…..WIN!!!

New Yorkers of a certain sporting obsession will recognize this as the triumphal incantation that concludes their radio baseball broadcasts, on the not-so-frequent occasions when the Yankees do, as they once did prodigiously, win.

New York arbitration lawyers will also recognize this as the form of a “Standard Award” in domestic commercial arbitration. Declare a winner, and sign off.

Those of you seeking a primer or a refresher course in the architecture of American arbitration awards would, by reading Tully Construction Co. v. Canam Steel Corp., 2015 WL 906128 (S.D.N.Y. Mar. 2, 2015), be informed, or reminded, that here in the USA we have : (1) the Standard Award (“The Yankees win!“) (2) the Reasoned Award (perhaps not more than “The weight of the credible evidence shows that, after nine innings, the Yankees have four runs and the Red Sox only two!“), and (3) Findings of Fact and Conclusions of Law (wherein the arbitrator must actually think and act like a judge). As an historical matter, there have been relatively few domestic arbitrations wherein the parties demanded an Award in form of Findings of Fact and Conclusions of Law as understood in the litigation process. Americans, as a rule, like their arbitration outcomes raw and lean. (And besides, as one reader has pointed out, it was thought that if the courts could not ascertain the basis for the decision, it would be more difficult for them to disagree with it).

The Tully case involved a dispute over steel components supplied to repair New York’s Bronx-Whitestone Bridge (a viable route to Yankee Stadium from Queens and Long Island). The parties opted to tear up their AAA arbitration agreement in favor of a non-administered process before a designated sole arbitrator using AAA Rules for Complex Construction Cases. Those Rules provided, concerning the form of the Award, for (1) “a concise financial breakdown of any monetary awards,” and (2) unless otherwise agreed by the parties, “a reasoned award.”  The arbitrator, for his Award, provided the prescribed breakdown (by categories) of the monetary relief, and declared “Tully Wins!”  When asked by losing side to withdraw this Award and provide a reasoned award, the arbitrator ruled that the awards was reasoned under all applicable state and federal law.

Not correct, held the U.S. District Court in Manhattan, granting a motion to vacate the award. From the Court’s decision, we are reminded that the “Standard” award, as a custom, evolved from early decisions holding that there is no federal common law principle requiring the arbitrator to state reasons for the result if the parties have not agreed that she should do so. We also learn that federal appeals courts have developed no uniform standard of what constitutes a reasoned award, and that district courts have allowed that it stands somewhere — and imprecisely so — between the Standard Award and Findings of Fact and Conclusions of Law. In practical terms the “somewhere” is a large domain — the courts evidently recognizing that judicial second-guessing of the arbitrator on the sufficiency of the exposition of reasons collides with the objectives of efficiency and finality. But Tully was a case about the absence of any exposition of reasons — and by issuing a purported final decision not in the form specified by the arbitration agreement, the arbitrator was held to have exceeded his powers. The case was remanded to the arbitrator for re-issuance of the award in compliant form.

Tully provides an important reminder about the domestic arbitration culture of the United States. The “Standard” arbitration award is a custom associated with domestic arbitration’s roots as a streamlined alternative to judicial process. But it is ironic that the standard award and the minimally-reasoned award retain popularity with arbitration users despite the inundation of domestic arbitration with pre-hearing and hearing process associated with courthouse litigation. In Tully, the arbitrator heard 17 days of testimony from nine fact witnesses and two experts, and admitted more than 800 exhibits. The demand for Arbitration had been filed December 30, 2009, and the hearing began November 6, 2012 —  so it is fair to assume there was an extensive discovery process. And yet the award took the form of a listing by categories of the amounts of monetary damages, essentially one page that mentioned no exhibits and cited no testimony. And still the arbitrator believed he had made a reasoned award.  Perhaps both parties expected more, but once the result was announced only the loser really cared.

Award-writing seems not to be a skill that is particularly valued in our domestic arbitration culture. The AAA’s Procedures for Large Complex Cases do not require a reasoned award, much less findings of fact and conclusions of law, unless the parties insist.  One rarely if ever sees, in the domestic setting, a provider-sponsored arbitrator training program focused on award-writing skills. The JAMS Arbitration Rules at least require, unless the parties agree otherwise, a “concise written statement” of the reasons for the award. One senses that JAMS’s instincts were toward more elaboration, but “concise” was adopted as an  acceptable limit beyond which JAMS could not go and expect to remain competitive with the AAA.  The CPR’s rules for domestic arbitration, administered and non-administered, say only that the award “shall state the reasoning” — a standard that seems more permissive than a “reasoned award” and surely does not push the envelope beyond the forgiving standards applied by reviewing courts.

And yet the provider institutions purport to be responding to user tendencies to prefer adjudication in the court systems, doing so notably by creating procedures for appellate arbitration. Perhaps the time is ripe for reconsideration of rules concerning the content of awards, especially for the type of large and complex case wherein parties would naturally expect the discipline of writing an opinion to be a primary line of defense against erroneous decision.  After all, how can the parties have confidence that the arbitrator has reached a correct result, or even that she paid sufficient attention to the massive record presented to her, if she has not completed the intellectual exercise of explaining her position in full written form?

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