Arbitrator

“ Hence, who—court or arbitrator—has the primary authority to decide whether a party has agreed to arbitrate can make a critical difference to a party resisting arbitration.
We believe the answer to the "who" question (i.e., the standard of review question) is fairly simple. Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, see, e.g., Mastrobuono v. ”

“ The court will refuse to stay proceedings where the subject-matter of the litigation falls outside the scope of the reference, or there is some serious objection to the fitness of the arbitrator, or some other good reason of the kind exists.
An arbitrator is not liable to be sued for want of skill or for negligence in conducting the arbitration (Pappa v. Rose, 1872, L.R. 7 C.P. 525) . ”

“ But it must be borne in mind that this arbitration was made under a rule of court. Not only that, but special provision was made for the action of the court in deciding questions of law arising upon the report of the arbitrator, so that the arbitration was not an outside and independent proceeding, but simply one had in court, for the purpose of facilitating the disposition of the case. ”

“ And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the "who should decide arbitrability" point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide. ”

“ And when parties commit to arbitrate contractual disputes, it is a mainstay of the Act's substantive law that attacks on the validity of the contract, as distinct from attacks on the validity of the arbitration clause itself, are to be resolved "by the arbitrator in the first instance, not by a federal or state court." ”

“ In American, the Court deals with a request to enforce the 'standard' form of arbitration clause, one that provides for the arbitration of ' (a) ny disputes, misunderstandings, differences or grievances arising between the parties as to the meaning, interpretation and application of * * * this agreement * * *.' Since the arbitration clause itself is part of the agreement, it might be argued that a dispute as to the meaning of that clause is for the arbitrator. ”

“ A party shall not be precluded from raising the plea that the arbitral tribunal does not have jurisdiction by the fact that he has appointed, or participated in the appointment of, an arbitrator.
(6) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitration proceedings. ”

“ An arbitrator cannot resign if he has once commenced to act, and can only be relieved on some ground arising subsequently to the submission (art. 1014) . Each party to the arbitration is required to produce his evidence at least fifteen days before the expiration of the period fixed by the submission (art. 1016) . If the arbitrators, differing in opinion, cannot agree upon an umpire (tiers arbitre) , the president of the Tribunal of Commerce will appoint one, on the application of either party (art. 1017) . ”

“ Section 5 provides that where a reference is to be to a single arbitrator, and all the parties do not concur in appointing one, or an appointed arbitrator refuses to act or becomes incapable of acting, or where the parties or two arbitrators fail, when necessary, to appoint an umpire or third arbitrator, or such umpire or arbitrator when appointed refuses to act, or becomes incapable of acting, and the default is not rectified after seven clear days’ notice, the court may supply the vacancy. ”

“ Even when the parties’ contract delegates the threshold arbitrability question to an arbitrator, the Fifth Circuit and some other Courts of Appeals have determined that the court rather than an arbitrator should decide the threshold arbitrability question if, under the contract, the argument for arbitration is wholly groundless. ”

“ This is being accomplished by requiring consumers to sign an agreement to forgo their Constitutional rights to ask the courts to settle a dispute with the dealer. Instead of an impartial judge or a jury of randomly selected jurors, the consumers are required to place their fate in the hands of an arbitrator. This is called binding arbitration which keeps the consumer from seeking justice in the court room even after the arbitrator's decision. ”

“ If there is an arbitral or other institution or person vested by the parties with power to remove an arbitrator, the Court shall not exercise its power of removal unless it is satisfied that the applicant has first exhausted any available recourse to that institution or person.
(3) While an application to the Court under this section is pending, the arbitral tribunal, including the arbitrator concerned may continue the arbitration proceedings and make an award. ”

“ If their decision satisfies both parties, and they abide by it, the case is at an end; but if either of the parties appeals to the law-courts, the Arbitrators enclose the evidence, the pleadings, and the laws quoted in the case in two urns, those of the plaintiff in the one, and those of the defendant in the other. These they seal up and, having attached to them the decision of the arbitrator, written out on a tablet, place them in the custody of the four justices whose function it is to introduce cases on behalf of the tribe of the defendant. ”

“ An arbitrator (and the following observations apply mutatis mutandis to an umpire after he has entered on his duties) has power to administer oaths to, or take the affirmations of, the parties and their witnesses; and any person who wilfully and corruptly gives false evidence before him may be prosecuted and punished for perjury (Arbitration Act 1889, sched. i. and s. 22) . At any stage in the reference he may, and shall if he be required by the court, state in the form of a special case for the opinion of the court any question of law arising in the arbitration. ”

“ Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462, we find it unnecessary to decide what effect, if any, factual or legal determinations of an arbitrator would have on a related action in the courts. ”

“ The office of arbitrator may also be entrusted to tribunals of justice, to scientific bodies, to public officials, or to private individuals, whether citizens or not of the States selecting them.
Article VIII.—The court of arbitration may consist of one or more persons. If of one person, he shall be selected jointly by the nations concerned. If of several persons, their selection may be jointly made by the nations concerned. Should no choice be made, each nation claiming a distinct interest in the question at issue shall have the right to appoint one arbitrator on its own behalf. ”

“ The Board shall immediately give notice to any taxpayer of any change made in his return; and if any taxpayer is dissatisfied with its action he may, within a specified time, give notice to the Board that he demands an arbitration; giving the name of his arbitrator. The Board shall then name its arbitrator and these two shall select a third, a majority of whom shall fix the assessment on the property; and their decision shall be final. [2] The arbitrators shall take an official oath 'before entering upon a hearing' ”

“ Nolde states a broad, rebuttable presumption of arbitrability which applies to all post-termination disputes arising under the expired agreement; it leaves the merits of the underlying dispute to be determined by the arbitrator. Today the majority turns Nolde on its head, announcing a rule that requires courts to reach the merits of the underlying posttermination dispute in order to determine whether it should be submitted to arbitration. ”

“ If there is no express provision on the point in the submission, an award under the Arbitration Act 1889 must be made within three months after the arbitrator has entered on the reference, or been called upon to act by notice in writing from any party to the submission. The time may, however, be extended by the arbitrator or by the court. An umpire is required to make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or any later day to which he may enlarge it. ”

“ But neither this arbitrator nor the prime contractor gave to petitioner even an intimation of the close financial relations that had existed between them for a period of years. We have no doubt that if a litigant could show that a foreman of a jury or a judge in a court of justice had, unknown to the litigant, any such relationship, the judgment would be subject to challenge. ”

“ With a view to facilitating the working of arbitration in disputes of minor importance admitting an abbreviated procedure, the contracting Powers propose the following rules for a summary procedure exclusively in writing:—
Each of the conflicting parties appoints an arbitrator, and these arbitrators need not necessarily be members of the Permanent Court of Arbitration. The two arbitrators thus appointed choose a third as umpire, who need not be a member of the Permanent Court either. ”

“ The arbitrators who are to determine this difference are, unless otherwise specially agreed, to be chosen from the general list of members in the following manner:—each party is to name two arbitrators, and these are to choose a chief arbitrator or umpire (sur-arbitre) . If the votes are equally divided the selection of the chief arbitrator is to be entrusted to a third power to be named by the parties. (Art. 26) . The tribunal is to sit at the Hague when practicable, unless the parties otherwise agree. (Art. 27) . ”

“ If they choose a head of a State as arbitrator, the whole of the arbitral [Pg 27] procedure is to be determined by him (article 56) . If they choose several arbitrators, an umpire is to preside, but in case they have not chosen an umpire, the arbitrators are to elect one of their own number as president (article 57) . If the Compromis is settled by a Commission, as contemplated by article 54 of Convention I., and in default of an agreement to the contrary, the Commission itself shall form the Arbitration Tribunal (article 58) . ”

“ Where confidential information is obtained by an arbitrator from a party to the arbitration proceedings during mediation proceedings and those proceedings terminate without the parties reaching agreement in settlement of their dispute, the arbitrator shall before resuming the arbitration proceedings disclose to all other parties to the arbitration proceedings as much of that information as he considers material to the arbitration proceedings. ”

“ Attempt is made to avoid the force and effect of the award of the arbitrator, upon the ground that the complainant was misled in signing the agreement and that he was deprived of the opportunity to summon witnesses and to be heard in person or by counsel, but it will be sufficient to say in response to those suggestions that the proofs exhibited do not satisfactorily sustain the charges. ”

“ In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorized by the parties or all members of the arbitral tribunal. ”

“ In any event, we note that the NYSE arbitration rules, which are applicable to the dispute in this case, provide protections against biased panels. The rules require, for example, that the parties be informed of the employment histories of the arbitrators, and that they be allowed to make further inquiries into the arbitrators' backgrounds. See 2 CCH New York Stock Exchange Guide ¶ 2608, p. 4314 (Rule 608) (1991) (hereinafter 2 N.Y.S.E. Guide) . In addition, each party is allowed one peremptory challenge and unlimited challenges for cause. ”

“ When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him. ”

“ The employer, caught in that jurisdictional dispute, is ordinarily in a helpless position. He is trapped in a cross-fire between two unions. All he can do is guess as to which union's members he will be required by an arbitrator, the Labor Board, or a court to assign to the disputed jobs. If he happens to guess wrong, he is liable to be mulcted in damages. I assume it would be equally difficult for him to prophesy what award an arbitrator, the Labor Board, or a judge will make as to guess how big a verdict a court or a jury would give against him. ”

“ The majority evidently fears that arbitrators cannot be trusted to decide the issue correctly. Yet arbitrators typically have more expertise than courts in construing collective-bargaining agreements, and our arbitration jurisprudence makes clear that courts must rely on arbitral judgments where the parties have agreed to do so. Thus in Nolde, we carefully avoided expressing any view as to whether the substantive provisions of the expired agreement had any posttermination effect precisely because the parties had expressed their preference for an arbitral, rather than a judicial interpretation. ”