March 26, 2018 Articles

Summary Disposition in Arbitration

By John A. Shope and Diana Tsutieva

When we ask in-house counsel whose companies avoid arbitration clauses to explain why, the answer frequently includes the assertion that "you can't get summary judgment in arbitration." No in-house lawyer wants his client's senior executives to have to travel a long way and undergo cross-examination in a dispute over contract interpretation that could be resolved just by having a judge read the contract, or where the email trail makes the controlling facts indisputable. But while there is a historical and continuing kernel of truth to the assumption that a summary judgment—or more appropriately in the context of arbitration, a "summary disposition"—is unlikely to be rendered in an arbitration case, that assumption is increasingly less likely to be true. Leading arbitration tribunals now expressly permit summary disposition, arbitration panels are issuing partial or total summary dispositions, courts are enforcing these awards, and parties are including provisions in their arbitration agreements to encourage summary disposition.

This article provides an overview of the current state of relevant arbitration rules and discusses the historical reasons why summary judgment has been disfavored in arbitration, the current trend of the courts towards enforcing summary arbitration awards, and how parties can encourage arbitrators to grant appropriate summary dispositions and ensure that courts will enforce the resulting awards.

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