AAA Makes Substantial Revisions to Commercial Arbitration Rules

16 December 2013

The American Arbitration Association (“AAA”) issued new Arbitration Rules and Mediation Procedures governing commercial disputes for AAA commercial arbitrations initiated on or after October 1, 2013. Arbitration proceedings filed prior to October 1, 2013 continue to be governed by the Arbitration Rules & Mediation Procedures amended and effective June 1, 2010. There are a number of significant changes to the Commercial Rules, many of which appear designed to add increased flexibility to the parties and retain arbitration’s promise of a streamlined, cost-effective alternative to traditional litigation. Some of the more notable changes include:

Rule 9 now mandates mediation in any arbitration with a demand > $75K (though either party can opt out). Any party contemplating filing an arbitration demand should be prepared to make a determination about the utility of mediation, as that question will be raised by the AAA and the arbitrator shortly after the initial filing.
Rule 22 places limits on discovery, including to documents “relevant and material to the outcome of the disputed issues” – a standard arguably more stringent and narrow that FRCP 26(b). Rule 22 also limits surprise to the parties by requiring each party to produce documents upon which it intends to rely at the hearing. Further, it allows the parties and the arbitrator to set “reasonable search parameters” prior to the exchange of electronic documents.
Rule 38 codifies the old Optional Rules for Emergency Measures that used to have to be specifically agreed to by contract – they should be available in any arbitration now. Previously, if not agreed to in any relevant contract, parties often had to initiate multiple actions in Court and Arbitration to obtain emergency relief.
Rule 58 expressly authorizes the arbitrator to issue “appropriate sanctions” for failure to comply with the rules or the Arbitrator. Absent such a rule, some arbitrators in the past had been reluctant to sanction any party, no matter how egregious the conduct. Rule 58 and Rule 23 should be read in tandem as Rule 23 likewise authorizes the arbitrator to issue sanctions and penalties necessary to ensure compliance with the arbitrator’s orders, the AAA rules, and the parties’ discovery obligations.

For a complete discussion of the changes, both major and minor, please refer to Foley’s chart, including suggested practice “takeaways” related to each new and revised rule.

Disclaimer

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

AAA Makes Substantial Revisions to Commercial Arbitration Rules

Related Insights

I Build Generative AI Technology: Does California’s New Transparency Requirement Apply to Me?

Foley Automotive Update

Act Quickly to Correct Recent USPTO Patent Term Adjustment Errors