Comments on: Strategy of the Day: Variations in State Arbitration Law

By: Steven Skulnik

Steven Skulnik — Tue, 27 Jun 2023 21:11:13 +0000

In reply to Ted Folkman. I'm not sure either. But Rule R-23 puts the arbitrator in charge of whether there will be any document exchange is if so the extent. Unless the MA rule is non-waivable (which is possible, like the New York rule that parties have the right to counsel) I think it would be a heavy lift to convince an arbitrator that document exchange is mandatory. Especially in an international case.

By: Ted Folkman

Ted Folkman — Tue, 27 Jun 2023 20:50:33 +0000

In reply to Steven Skulnik. Steven, thanks for the comment! I am not sure that is right. I have not had to rule on the issue, but in Massachusetts arbitrations where I have been counsel, arbitrators have taken the view that there is a statutory right to serve a request for documents. I do not want to state a strong view on the topic, as I may one day have to decide it, but the view other arbitrators have taken seems at least sensible to me. Nothing in Rule R-23 seems incompatible with the statute, at least on the face of the rule.

By: Steven Skulnik

Steven Skulnik — Tue, 27 Jun 2023 17:03:10 +0000

Should the arbitration clause call for arbitration under a set of rules, then the parties would seem to waive section 7(e). AAA Commercial Rule R-23 (2022), for example, states “The arbitrator shall manage any necessary exchange of information among the parties with a view to achieving an efficient and economical resolution of the dispute, while at the same time promoting equality of treatment and safeguarding each party’s opportunity to fairly present its claims and defenses.”