New Commercial Arbitration Rules Provide Predictability

In 2013, the American Arbitration Association introduced two new sets of rules that apply to commercial arbitration disputes. The AAA revised its general Commercial Arbitration Rules, and it added a set of Optional Appellate Arbitration Rules.

The Commercial Arbitration Rules were revised in four key areas. The first involves taking testimony from witnesses not located in the jurisdiction that is the site of the arbitration. The second is the incorporation of the emergency protection measures, which were formerly optional. The third is a rule related to dispositive motions. The fourth and most practically important change was the revision to provisions involving discovery. There is still no blanket entitlement to document production, but the new Rule R-22 makes clear that the arbitrator can require the parties to exchange documents on which they intend to rely.

In a change that will likely have less impact on the day-to-day operations of those involved in arbitration, the AAA also created a set of Optional Appellate Arbitration Rules, which apply only when the parties stipulate to them or agree to them by contract.

The revisions reflect the new reality that arbitration is increasingly used to resolve disputes between a broad range of parties, and that arbitration is frequently the dispute resolution mechanism of choice for contractual disputes between sophisticated business parties. Some practitioners may not like the new rules for various reasons, but parties may always choose to carve out certain rules by contract.