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The Arbitration Rules: Procedural Rulemaking by Arbitration Providers

By David Horton. Full Text.

The field of civil procedure revolves around the Federal Rules. However, there is an alternative procedural universe. The Supreme Court’s relentless expansion of the Federal Arbitration Act funnels tens of thousands of disputes every year to arbitration administrators such as the American Arbitration Association and JAMS. These entities have created their own procedural codes for cases that they administer. Although these “Arbitration Rules” govern some of the most important topics in dispute resolution, they have flown below the radar in both the procedure and the arbitration literature.

This Article explores this parallel procedural track. It begins by explaining that the Arbitration Rules deviate from court-based procedures in three important ways. First, unlike the Federal Rules, which are created by experts who solicit input from affected parties, most Arbitration Rules are written in secret by for-profit corporations. Second, the Federal Rules are trans-substantive and uniform, but the Arbitration Rules vary between providers and case types. Third, the Federal Rules try to balance efficiency and accuracy, but the Arbitration Rules unabashedly favor speed over precision. This Article then discusses the costs and benefits of this novel form of procedural rulemaking. Finally, it argues that courts can improve outcomes in cases involving three unsettled issues—implied delegation clauses, weaponized arbitration rules, and mass individual arbitrations—by recognizing how the Arbitration Rules depart from the norm of state-created procedures.