1. PROTECTIVE MEASURES IN SUPPORT OF ARBITRATION
JAMES H. CARTER
COMBAR NORTH AMERICAN MEETING
1 JUNE 2017

2. THREE IMPORTANT PROTECTIVE ACTIVITIES
Protecting the arbitral process, including Emergency Arbitrators’ orders
Protecting arbitrating parties from frivolous challenges and collateral attacks on awards
Protecting arbitrators from improper assertions of civil liability

3. PROTECTING THE ARBITRAL PROCESS: EMERGENCY ARBITRATOR ORDERS
Many arbitral rules and some statutes now provide for them
AAA (1999, opt-in), ICDR (2006, opt-out), ICC (2012, opt-out)
Statutes in Singapore (2012), Hong Kong (2013)
Are interim awards “final” and enforceable?
In US, if finally dispose of an issue or award interim relief to preserve integrity of an eventual award
Domestically, interim awards can include an order to post security or for production of documents

4. ENFORCING EMERGENCY ARBITRATOR ORDERS
Yukos v. Microsoft: interim award required executing an agreement
Was it final enough (though possibly modifiable by a full tribunal)?
Was it too final? (Did the arbitrator exceed his authority?)
Order defined parties’ rights fully, for an interim period, was enforced
“Ordinary procedural rulings” nevertheless would not qualify
Law is still developing under NY Convention, but courts appear sympathetic and practical

5. PROTECTING ARBITRATING PARTIES
Most statutory grounds for vacating awards are specific and limited, so counsel seek open-ended alternatives
Court limitations on the open-ended grounds:
“Manifest disregard” of the law or facts (compare Arb. Act 1996, s.68)
Public policy

6. PROTECTING ARBITRATING PARTIES
Sanctions against attorneys for tactics, in extreme circumstances
28 USC section 1927 (unreasonable multiplication of costs)
“Failure to abide by” an arbitral award
Failure to respond to motion to confirm award
Rule 11, Fed. Rules of Civil Procedure (frivolous arguments)
May apply to unreasonable evasion of obligation to arbitrate, but threshold is high
Can apply to frivolous suits against arbitrators (Landmark Ventures)

7. PROTECTING ARBITRATORS
Differing national approaches to arbitrator immunity
English: bad faith
Civil Law: contractual, recklessness
US: functional, quasi-judicial immunity
RUAA: expressly exempts failure to disclose
Common law protections also strong, as in NY
Counsel could be sanctioned for abuses
Same immunity typically extends to arbitral institutions

8. PROTECTING ARBITRATORS
Exceptions to immunity in US are exceedingly narrow
“Complete nonperformance” in rendering an award (arguably)
“Pervasive bias and corruption” (NAF, MBDA cases)
Misleading arbitrator advertising (arguably) (JAMS case)