23 Jul: Arbitration Insight No. 19

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 19 ARBITRATORS NEED NOT DISCLOSE BACKGROUND FACTS IRRELEVANT TO THE CASES BEFORE THEM It is accepted that arbitrators have a duty, pursuant to Code of Civil Procedure section 1281.9(a), to disclose matters that could cause a person to reasonably entertain a doubt about their impartiality but Rebmann v. Rohde (2011) 196 Cal.App.4th 1283 (hearing denied September 14, 2011) holds that this disclosure duty does not extend to information about…

14 Jul: Arbitration Insight #18

THE APPELLATE COURT REVISTS BENJAMIN, WEILL & MAZUR V. KORS A few months ago or last December (see Arbitration Insight No. 16), I discussed Benjamin, Weill & Mazer v. Kors (2010) 189 Cal.App.4th 126 (BW&M), which held that part-time lawyer-arbitrators should disclose their legal involvement in business interests that are similar to the facts of the matter to be arbitrated. In BW&M, one of the arbitrators in a mandatory fee arbitration (MFA) failed to advise…

01 Mar: Arbitration Insight No. 17

UPDATE CONCERNING ARBITRATOR DISCLOSURES OF CONFLICTS Two recent cases involving arbitrator failure to disclose potential conflicts, each with its own focus, are the subject of this Arbitration Insight. In La Serena Properties v. Weisbach (2010) 186 Cal.App.4th 893, the American Arbitration Association and its arbitrator successfully demurred to a complaint for damages by an arbitration party who alleged that the AAA and the arbitrator had not disclosed the extent of the arbitrator’s relationship with counsel…

09 Dec: Arbitration Insight No. 16

APPEARANCE-OF-PARTIALITY DISCLOSURES BY ARBITRATORS Two very recent cases discuss the parameters of an arbitrator’s obligation to disclose “matters that could cause a person aware of the facts to reasonably entertain a doubt that the … neutral arbitrator would be able to be impartial.” (Code of Civil Procedure section 1281.9, subdivision (a).) Haworth v. Superior Court (2010) 50 Cal.4th 372 is important because it holds that the above appearance-of-partiality standard concerning arbitrator recusal should not be…

09 Dec: Arbitration Insight No. 15

MONCHARSH, ARMENDARIZ AND, NOW, PEARSON DENTAL SUPPLIES Eighteen years ago, Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 held that an arbitration award cannot be vacated because of errors of law. Moncharsh recognized, however, “that there may be some limited and exceptional circumstances justifying judicial review of an arbitrator’s decision” such as when “granting finality to an arbitrator’s decision would be inconsistent with the protection of a party’s statutory rights.” (Id at p. 32.) Because…

09 Aug: Arbitration Article No. 14

PARTIES MAY EXPRESSLY AGREE TO JUDICIAL REVIEW OF AN ARBITRATION AWARD Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, which holds that parties to an arbitration may expressly agree to obtain judicial review of an arbitration award, is also significant because it presages a potential change in the Supreme Court’s strong preference that arbitrations be subject only to minimal court supervision or interference. (See, for example, Moncharsh v. Heily & Blase (1992) 3…

09 Aug: Arbitration Article No. 13

EQUITABLE DEFENSES AND WRITTEN FINDINGS In a further extension of an arbitrator’s powers, Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179 holds that arbitrators do not exceed their authority when they apply equitable defenses to excuse a party from performing a material condition of an agreement that provides the arbitrator may not modify or change any of the agreement’s material provisions.

09 Aug: Arbitration Article No. 12

THE TIMING OF AN ARBITRATOR’S DISCLOSURE OBLIGATIONS Neutral arbitrators in contractual arbitrations are required, pursuant to Code of Civil Procedure section 1281.9, subd. (a), to disclose, within 10 calendar days of service of their proposed nomination or appointment (section 1281.9, subd. (b)), “all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.”

09 Aug: Arbitration Article No. 11

THE FEDERAL ARBITRATION ACT AND LOCAL ARBITRATIONS The U.S. Supreme Court’s recent holding in Preston v. Ferrer (2008) 128 S.Ct. 978 that the Federal Arbitration Act (9 U.S.C. § 1 et seq.) (FAA) (fn. 1) supersedes state laws that lodge primary jurisdiction of contractual arbitration questions in judicial or administrative forums shall have a substantial impact on who decides arbitral issues in California. (The FAA rests on Congress’s authority under the Commerce Clause “for the…

09 Aug: Arbitration Article No. 10

THE PRELIMINARY HEARING The preliminary hearing (also known as an arbitration management conference) is an essential first step in assuring that the arbitration process proceeds smoothly. The following may be discussed at this session: