July 22, 2018 Articles

Does Summary Judgment in an Arbitration Proceeding Avoid Delays and Expenses—Or Add to Them?

Does an arbitrator have the author to grant a summary judgment motion?

By Charles F. Forer

The promise of arbitration under the Federal Arbitration Act (FAA) is to avoid litigation procedures that create delays and expenses. As the Supreme Court said decades ago, "The [FAA] establishes by statute the desirability of arbitration as an alternative to the complications of litigation. The reports of both Houses on that Act stress the need for avoiding the delay and expense of litigation…." Wilko v. Swan, 346 U.S. 427, 431 (1953).

Does that mean that an arbitrator has the authority to grant a summary judgment motion, and so avoid the costs and delays that a full-blown arbitration hearing would entail? But what about Section 10(a)(4) of the FAA, which allows a court to vacate an arbitration award when the arbitrator exceeded his or her powers? How do we resolve the tension between "avoiding the delay and expense of litigation" through a summary judgment procedure and ensuring an arbitrator stays within the bounds of his or her delegated authority?

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