Protocol of Disclosure of Documents,
and the Presentation of Witnesses in
Commercial Arbitration and Guidelines
on Early Disposition of Issues in
Arbitration (see www.cpradr.org); JAMS’
Streamlined Arbitration Rules and their
Arbitration Discovery Protocols (www.
jamsadr.com) and the AAA’s Fast Track
Arbitration Rules ( www.adr.org).
14 www.adr.org and conversations
with David Evans, presentations
by AAA personnel.
15 This description is based upon
conversations Weiner has had with
colleagues in that company.
16 The AAA requires that requested
documents be “relevant and material to
the outcome of the disputed issues;”
borrowing from an international context,
Article 3 ( 3) of the International Bar
Association’s 2010 “IBA Rules on the
Taking of Evidence in International
Arbitration” requires that a request
to produce documents contain: (a)
(i) a description of each requested
document sufficient to identify it, or
(ii) a description in sufficient detail
(including subject matter) of a narrow
and specific requested category of
documents that are reasonably believed
to exist (with further specifics required
for e-documents); (b) a statement
regarding how the documents requested
are relevant to the case and material
to its outcome, and (c) (i) a statement
that the documents requested are
not in the possession, custody, or
control of the requesting party or
a statement of the reasons why it
would be unreasonably burdensome
for the requesting party to produce
such documents, and (ii) a statement
of the reasons why the requesting
party assumes the documents
requested are in the possession,
custody, or control of another party.
17 A good and balanced post, “Room in
American Courts for an Australian Hot
Tub?”, is available here: www.jonesday.
18 Under the CPR procedure (the first
provider to adopt an optional appellate
route), an award may be set aside by the
appellate panel for any reason available
under the US Federal Arbitration Act.
In addition, if the award contains
material and prejudicial errors of law
of such a nature that it does not rest
upon any appropriate legal basis or
is based upon factual finding clearly
unsupported by the record; under the
JAMS procedures, the appeal panel
applies the same standard of review that
the first-level court in the jurisdiction
would apply to an appeal from the trial
court decision; and under the AAA
rules, the award must show an error of
law that is material and prejudicial or
determinations of fact that are clearly
erroneous. See www.cparadr.org, www.
jamsadr.org and www.adr.org to locate
the appellate rules for each of these
providers and examine the details of
how these rules operate. Also note that
there has been discussion of whether or
not adopting a state law that permits an
expanded judicial review of arbitration
awards is workable under US Supreme
Court precedent; this line of thinking
is worth pursuing with outside counsel.
See a summary of cases and statutes
(such as New Jersey’s expanded
judicial review) by Merril Hirsh and
Nicholas Schuchert, “Writing Arbitration
Clauses to Get the Arbitration that
You Want” Law 360 8/9/16.
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