College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition

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About the book:
The aim of the Guide is to identify best practices that arbitrators can employ to provide users of arbitration with the highest possible standards of economy and fairness in the disposition of business disputes. This second edition of the Guide refines the guidance contained in the first edition to take into account developing case law, revised institutional rules, advancements in arbitration techniques and thinking, and also addresses newly evolving issues such as electronic discovery.

There are significant differences in the ways in which arbitrations are conducted in different substantive fields of commerce and among different arbitrators in the same field. Techniques that are appropriate and useful in one case may be quite unsuited to another. For this reason, it is not possible to prescribe a single set of best practices that commercial arbitrators should invariably follow in every case. Rather, this Guide attempts to identify the principal issues that typically arise in each successive stage of an arbitration and to explain the pros and cons of various preferred ways of handling each issue. From this perspective, the best practice for an arbitrator is to carefully consider the merits of alternative techniques available for dealing with a particular issue and to then select the technique best suited to the situation. In addition, the Guide attempts to identify the full array of practices available for use in complex arbitrations, which can be adapted and streamlined for simpler cases.

Formed in 2001, the College of Commercial Arbitrators is a non-profit organization composed of prominent, experienced commercial arbitrators who believe that a national association of commercial arbitrators can provide a meaningful contribution to the profession, to the public, and to the businesses and lawyers who depend on arbitration as a primary means of dispute resolution. Its mission includes promoting professionalism and high ethical practice in commercial arbitration, adopting and maintaining standards of conduct, providing peer training and professional development, and developing and publishing "best practices" materials. This work is the College's principal vehicle for fulfilling several aspects of its mission. Many seasoned and knowledgeable practitioners generously contributed their time and insights to the creation of this Guide.

 Preface

 About the Editors:

Editor-in-Chief James M. Gaitis is the former Director of the
International Dispute Resolution and Management Programme at the
Centre for Energy, Petroleum and Mineral Law and Policy, University of
Dundee, Scotland, where he continues to serve as a member of the Global
Faculty. Over the past 20 years he has been listed on a broad variety of
international and domestic arbitration rosters and panels, including the
CPR's Oil & Gas/Energy Panel, the AAA's Large, Complex Case Panel,
National Panel of Construction Arbitrators, and National Energy Panel, as
a Charter Member of the National Academy of Distinguished Neutrals, and
as a Fellow and Chartered Arbitrator of the Chartered Institute of
Arbitrators. He is the author of numerous articles relating to arbitration law,
several of which have been repeatedly cited to the United States Supreme
Court and federal and state appellate courts. He has over 32 years
experience serving as legal counsel and as an arbitrator in complex
commercial disputes and in energy and oil & gas disputes involving
upstream, midstream, and downstream issues. He has been a Fellow of the
College of Commercial Arbitrators since 2003 and from 2006-2008 served
on its board of directors. He served as an Editor of the first edition of The
College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration.

Editor Curtis E. von Kann, a graduate of Harvard College and Harvard
Law School, practiced civil litigation for sixteen years, principally as an
associate, then partner of Hogan & Hartson in Washington, DC. In 1985
President Ronald Reagan appointed him a Judge of the District of
Columbia Superior Court, where he presided for ten years over a wide
variety of civil and criminal trials. Following retirement from the Court, he
served as Independent Counsel in the investigation of President Clinton's
Chief of Staff. He also served as a Member of three Library of Congress
copyright royalty arbitration panels, a hearing officer for the Congressional
Office of Compliance, and Special Master to the Deputy Attorney General
of the United States in the resolution of a dispute between two divisions of
the Department of Justice. Since 1997 he has been a full-time arbitrator, mediator,
and neutral caseevaluator in the Washington, DC office of JAMS, where he has served as sole arbitrator, tribunal member, and tribunal chair in a broad range ofcommercial arbitrations. Judge von Kann is a member of the Chartered Institute of Arbitrators in London, a member of the Distinguished NeutralsRoster of the International Institute for Conflict Prevention & Resolution (CPR), and Immediate Past President of the College of Commercial Arbitrators and has lectured and published on many ADR topics. He served as Editor-in-Chief of the first edition of the College of Commercial
Arbitrators Guide to Best Practices in Commercial Arbitration.

Editor Robert W. Wachsmuth has 45 years experience in the trial and
arbitration of complex business, antitrust, and construction disputes. A
Viet Nam veteran, serving in the Marine Corps JAG and as a Military Judge,
Mr. Wachsmuth is a founding member and has held various offices in the
Construction Law Section of the State Bar of Texas and the ABA Forum
on the Construction Industry and is the author of numerous articles and a
frequent presenter in the areas of arbitration and the trial of complex cases.
Since 1974 he has been listed on the rosters and panels of many
international and domestic arbitration providers or administrative bodies,
including CPR, AAA and USCIB (ICC). He has extensive international
experience involving the negotiation of contracts and the prosecution and
defense of construction and other business claims in the Middle East,
Europe, Canada, Mexico, the Far East, and South and Central America and
has represented several foreign owners, contractors, and design
professionals doing business in the United States. He is active as an
instructor for the AAA, Texas A&M University, and numerous Texas and
ABA sponsored educational programs. Mr. Wachsmuth has been a Fellow
of the College of Commercial Arbitrators since 2005.

About the Contributors:

• Gerald Aksen, Independent Arbitrator and Mediator, New York
• Henri C. Alvarez, Partner, Fasken Martineau, Vancouver
• Markham Ball, Senior Fellow, International Law Institute, Washington, DC
• William L. D. Barrett, Partner, Hollyer, Brady, Smith & Hines, New York
• Axel H. Baum, Partner, Hughes Hubbard & Reed, Paris
• Bruce W. Belding, Independent Arbitrator, Sausalito, California
• R. Doak Bishop, Partner, King & Spalding, Houston
• John P. Bowman, Partner, Fulbright & Jaworski, Houston
• David N. Brainin, Of Counsel, Locker, Greenberg & Brainin, New York
• Thomas J. Brewer, Independent Arbitrator and Mediator, Seattle
• James H. Carter, Partner, Sullivan & Cromwell, New York
• Richard Chernick, Vice President and Managing Director, JAMS Arbitration Practice, LA
• Hon. late Winslow Christian, Formerly, Justice of the California Court of Appeals
• Louis A. Craco, Independent Arbitrator and Mediator, Manhasset, NY
• Robert B. Davidson, Executive Director, JAMS Arbitration Practice, New York
• Louise E. Dembeck, Founder and Chief Executive Officer, American International Mediation, Arbitration and Conciliation Center for Dispute Resolution, New York
• M. Scott Donahey, Independent Arbitrator and Mediator, Palo Alto, CA
• Paul J. Dubow, Independent Arbitrator and Mediator, San Francisco
• James W. Durham, Esq., Independent Arbitrator & Mediator, Media, Pennsylvania
• Jay W. Elston, Esq., Independent Arbitrator, Houston, Texas
• Eugene I. Farber, Partner, Farber, Pappalardo & Carbonari, White Plains, NY
• Walter G. Gans, Independent Arbitrator and Mediator, New York
• Barry H. Garfinkel, Partner, Skadden, Arps, Slate, Meagher & Flom, New York
• Eugene S. Ginsberg, Independent Arbitrator and Mediator, Garden City, NY
• Ruth V. Glick, Independent Arbitrator and Mediator, Burlingame, CA
• James P. Groton, Partner, Sutherland Asbill & Brennan, Atlanta
• David M. Heilbron, Esq., Bingham McCutchen, San Francisco, California
• L. Tyrone Holt, Managing Principal, The Holt Group, Denver
• Robert A. Holtzman, Of Counsel, Loeb & Loeb, Los Angeles
• John Kagel, Independent Arbitrator and Mediator, Palo Alto, CA
• Richard H. Kreindler, Esq., Partner, Sherman & Sterling, Frankfurt, Germany
• Louise A. LaMothe, Independent Arbitrator and Mediator, Santa Barbara, CA
• June R. Lerhman, Esq., Los Angeles, California
• Hon. Richard A. Levie (Ret.), JAMS, Washington, DC
• James R. Madison, Independent Arbitrator and Mediator, Menlo Park, CA
• Bruce E. Meyerson, Former Chair, American Bar Association Section of Dispute Resolution, Phoenix
• Carroll Neesemann, Partner, Morrison & Foerster, New York
• Lawrence W. Newman, Esq., Of Counsel, Baker & McKenzie, New York, New York
• Gerald F. Phillips, Partner, Phillips, Salman & Stein, Los Angeles
• Lucy F. Reed, Partner, Freshfields Bruckhaus Deringer, New York
• Thomas D. Reese, Independent Arbitrator & Mediator, Palo Alto, CA
• Hon. Kathleen A. Roberts (Ret.), JAMS, New York
• Deborah Rothman, Independent Arbitrator & Mediator, Los Angeles
• John M. Seitman, JAMS, Del Mar, CA
• Stanley P. Sklar, Partner, Bell Boyd & Lloyd, Chicago
• Francis O. Spalding, Independent Arbitrator and Mediator, San Francisco
• Christi L. Underwood, Esq., Independent Arbitrator and Mediator,Orlando, Florida
• David E. Wagoner, Independent Arbitrator and Mediator, Seattle
• Michael S. Wilk, Esq. Partner, Hirsh & Westheimer, Houston, Texas
• John H. Wilkinson, Esq., JAMS, New York, New York

Praise for The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition

 "The use of arbitration in larger and more complex cases is increasing. These cases require more sophisticated procedures and case management. The Second Edition of the College of Commercial Arbitrators'"Best Practices" is an invaluable tool for arbitrators who strive to provide skillful and effective case management in this challenging environment. It effectively presents the collective wisdom of the top commercial arbitrators in the United States and sets a clear standard for exceptional performance."
-Chris Poole, President and CEO, JAMS The Resolution Experts

Praise from The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 1st Edition:

"While chiefly addressed to arbitrators, it will also serve advocates well. In
addition to other attributes, this book examines contemporary topics which
are not typically discussed such as Class Actions, Encouraging Mediation
and Other Settlement Efforts, and Addressing Arbitrator Performance
Problems. Highly readable and very useful."
-William K. Slate II, President and CEO, American Arbitration Association

"At a time when concerns about costs, delays and results in commercial
arbitration continue to dominate current discourse, it is critical for arbitrators
and counsel to take the lead in addressing these concerns with realistic
practical solutions. The College of Commercial Arbitrators Guide to Best
Practices is not only an important contribution to the literature, but a
significant step in the direction of responsible stewardship by those active
in the field. It should be an essential addition to the practitioner's library."
-Thomas J. Stipanowich, Academic Director, Straus Institute for Dispute
Resolution; Professor of Law, Pepperdine School of Law; Former President
and CEO, CPR Institute.