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Alternative Dispute Resolution | MONDAY, NOVEMBER 16, 2015 | S5
of the later of the date of oral argument, the receipt of new evidence, or the receipt of the record and of all briefs. See id. at (D).
The panel may affirm, reverse, or modify the award. See id. The panel’s decision will consist of a concise written opinion unless the Parties agree otherwise. See id.
CPR’s Arbitration Appeal Procedure
CPR first published its Arbitration Appeal Procedure in 1999. Since the initial publica- tion of the Appeal Procedure, the Appeal has gone through minor changes, largely to reflect changes in the CPR Arbitration Rules. CPR’s Appeal Procedure is well thought out, and the “Introduction” to the Appeal Procedure addresses the two themes that seem to inform the positions of proponents and opponents of appeals in arbitration.9
The Introduction notes: “Most users of arbi- tration find the finality of an award appealing” and that CPR “does not wish to encourage widespread appeals from arbitration awards.” It acknowledges, though, that “some parties to major cases are concerned about the pos- sibility of an aberrant award and would like to appeal from such an award to a tribunal of outstanding appellate arbitrators.” Thus, CPR’s procedure establishes “relatively nar- row grounds for appeal,” provides that “an unsuccessful appellant is required to reim- burse the appellee’s legal fees and other costs,” and utilizes a panel of appellate arbi- trators consisting entirely of former federal
judges who are also experienced arbitrators.” As is further explained in the “Rationale” section of the accompanying Commentary: “On the one hand, CPR wishes to allay the concerns of attorneys and clients regarding the rare arbitration award that blatantly fails to apply the law or for which there is scant support in the record. On the other hand, CPR does not wish to encourage widespread appeals from arbitration awards.” Thus, “[t]he Appeal Procedure is intended primarily to serve the interests of a party against which a large sum has been awarded, and that, based on careful professional analysis, concludes
that it is the victim of a gross injustice.” CPR also reasons that if parties have the option of an appeal, they may see less need for three arbitrators (which can cause addi- tional cost and delay as opposed to a sole arbitrator) and that the losing party may be less inclined to seek review in court even on statutory grounds (making the process even
more efficient).
The Procedure. At the outset, as with the
other institutions, CPR’s Arbitration Appeal Procedure requires the parties to consent to the filing of an appeal under the CPR Arbitra- tion Appeal Procedure. See Arbitration Appeal Procedure, Rule 1.1. The appeal tribunal will be chosen from a panel constituted by CPR to hear appeals. See id. at Rule 1.2. No appeal may be filed unless the tribunal was required to reach a decision in compliance with appli- cable law and rendered a written decision setting forth the factual and legal bases of
the award, and there is a record that includes all hearing and all evidence in the arbitration proceeding from which the appeal is taken. See id. at 1.3.
Within 30 days of the date on which the award was received, a party may commence an appeal by giving written notice to the oppos- ing parties. See id. at 2.1. The appeal shall set forth the agreement in writing providing for the appeal, the elements of the award being appealed, and the basis for the appeal, and shall transmit the portion of the record that is relevant to the appeal. See id. Upon receipt of the appeal, the opposing party has 14 days in which to serve a cross-appeal. See id. at 2.2.
In general, the appellate tribunal will con- sist of three members unless the parties agree that it shall consist of one. See Rule 4.1. The tribunal is selected from CPR’s appellate panel utilizing a procedure whereby the parties seek first to agree on the candidates from the list provided by CPR. See id. at 4.2. If agreement is not reached within 10 days, the parties are to submit the list to CPR rank ordering the candidates on whom they did not agree. See id. CPR then selects the candidates with the lowest scores and has the ability to break any tie. See id. If there is a three-member panel, the tribunal selects one member from the group to be the Chair. See id. at 4.3.
Regarding briefing, the appellant is permit- ted one opening brief and one response brief while the appellee is permitted one brief. See id. at 7.2. If the appellee cross-moves, then they are entitled to a second brief. See id. Oral
argument shall be held at the request of a party or if the tribunal deems it necessary. See id. at 7.4. Also, if the appellant alleges grounds for vacating the award under 9 U.S.C. §10, the tribunal may take evidence supporting and rebutting such an allegation.10
The tribunal may modify or set aside an award but only on the following grounds:
1. the award contains material and prejudi- cial errors of law of such a nature that it does not rest upon any appropriate legal basis, or
2. the award is based upon factual findings clearly unsupported by the record; or
3. the award is subject to one or more of the grounds set forth in §10 of the Federal Arbitration Act for vacating an award.
See Rule 8.2.
If the original award is fully affirmed, unless the tribunal orders otherwise, the appellant is required to reimburse the appellee’s share of the costs of the Appeal expended by the Appellee as well as the Appellee’s attorney fees and other out-of- pocket-expenses related to the appeal. See Rule 12. If, however, the tribunal modifies or reverses the original award, the tribunal may apportion the parties’ costs, attorney fees, and other out-of-pocket-expenses, in such manner as it deems reasonable under the circumstances. See id.
If, after an appellate award, a party seeks judicial review or opposes confirmation, and that effort does not result in vacation or “substantial modification” of the award or appellate award, the party » Page S11