Posts Tagged ‘small business arbitration’

The AAA Sent Me a List of Arbitrators. How Should My Business Choose One?

September 19th, 2026 American Arbitration Association, Arbitration Law, Arbitration Practice and Procedure, Arbitration Provider Rules, Arbitration Providers, Arbitrator Duty to Disclose, Arbitrator Lists and Ranking, Arbitrator Selection, Arbitrator Selection and Qualification Provisions, Evident Partiality, Impartiality, Independence No Comments »

Arbitrator Selection | AAA Commercial RulesThis is a small business guide to the default method of arbitrator selection under the American Arbitration Association (“AAA”) Commercial Arbitration Rules and Mediation Procedures (the “AAA Commercial Rules”, available here). It picks up where our most recent article—a small business guide to the first few days of an AAA  arbitration—left off.

Like our most recent article, it assumes there is a business-to-business dispute governed by AAA Commercial Rules, the parties’ agreement does not prescribe an arbitrator selection regime, and that the AAA has sent the parties a list of potential neutral arbitrators under AAA Commercial Rule R-13.

Arbitrator selection is one of arbitrator’s most important features. More than 20 years ago, U.S. Circuit Judge Richard A. Posner (ret.) explained that the “cornerstone of the arbitral process” was the “[s]election of the decision maker by or with the consent of the parties. . . .” Lefkovitz v. Wagner, 395 F.3d 773, 780 (2005); see also Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 668, 670 (2010) (one of the FAA’s “rules of fundamental importance” is parties “may choose who will resolve specific disputes”) (emphasis added; citations omitted).

An AAA-proffered list of arbitrator candidates is not routine paperwork. The business should treat arbitrator selection as a major strategic decision, begin promptly the process, and work closely with experienced arbitration counsel in an effort to ensure informed, deliberate choices are made throughout it.

The arbitrator will manage the proceeding, resolve discovery and procedural disputes, hear the evidence, apply the governing law and contract, and ultimately decide who wins and what relief, if any, should be awarded to whom. In most cases, judicial review of the resulting award will be extremely limited.

Given the stakes, the parties are likely to disagree on who an ideal candidate should be.

So what should a business do when it receives an AAA list of arbitrator candidates? Continue Reading »

I Just Received an Arbitration Demand Under the AAA Commercial Rules. What Should I Do First?

September 14th, 2026 American Arbitration Association, Arbitrability, Arbitral Seat, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration Fees, Arbitration Law, Arbitration Practice and Procedure, Arbitration Provider Rules, Arbitration Providers, Arbitration Risks, Arbitration Situs, Arbitrator Selection and Qualification Provisions, Authority of Arbitrators, CPLR Article 75, Insurance Coverage, New York Arbitration Law (CPLR Article 75), Uncategorized No Comments »

Introduction: Treat the AAA Demand as a Legal Proceeding, Not Routine Business Mail

AAA Commercial Arbitration Demand | First Steps After Receipt

Received an American Arbitration Association (“AAA”) arbitration demand? Wondering what to do?

The short answer is: contact experienced arbitration counsel immediately. Do not put the arbitration demand in the same pile as ordinary contract correspondence, and do not wait to see what happens next. An AAA commercial arbitration is an adjudicative proceeding that can end in a final, binding, confirmed award fully enforceable in court. Important deadlines can begin running as soon as the AAA sends notice that an arbitration demand  has been filed.

This article assumes a business-to-business contract calling for AAA arbitration under the AAA Commercial Arbitration) Rules and Mediation Procedures (eff. June 1, 2026) (the “AAA Commercial Rules,” available here). It assumes the dispute is not subject to the AAA’s Expeditated Procedures or its Procedures for Large, Complex Commercial Disputes.

A respondent (i.e., a person against whom the arbitration demand is made) ordinarily has 14 calendar days after the AAA sends notice of the filing of the demand to file an answering statement. If no answer is filed, the claim is deemed denied, but the arbitration continues. AAA Commercial Rule R-5(a). Do not treat that deemed denial as permission to ignore the deadline, because other objections may have to be raised at or before the answer.

There is also an important timing wrinkle. Under Rule R-4, the Continue Reading »

Unfavorable Arbitration Award? A Businessperson’s Guide to Vacating, Modifying or Correcting FAA-Governed Awards

July 29th, 2026 Appellate Practice, Application to Vacate, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Authority of Arbitrators, Award Fails to Draw Essence from the Agreement, Award Procured by Fraud and Corruption, Award Vacated, Awards, Businessperson's FAQ Guide to the Federal Arbitration Act, Challenging Arbitration Awards, Contract Interpretation, Corruption in the Arbitrators, Corruption or Undue Means, Disinterestedness, Evident Partiality, Exceeding Powers, FAA Chapter 1, FAA Section 10, FAA Section 11, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 10, Federal Arbitration Act Section 11, Federal Subject Matter Jurisdiction, Fraud, Fraud or Undue Means, Grounds for Modifying or Correcting Award, Grounds for Vacatur, Imperfectly Executed Award or Powers, Manifest Disregard of the Agreement, Manifest Disregard of the Law, Modify or Correct Award, Personal Jurisdiction, Petition to Modify Award, Petition to Vacate Award, Post-Award Federal Arbitration Act Litigation, Practice and Procedure, Prejudice, Procedural Arbitrability, Procedural Misconduct, Section 10, Section 11, Small Business B-2-B Arbitration, State Arbitration Statutes, Subject Matter Jurisdiction, Supreme Court, United States Supreme Court, Vacate, Vacate Award | 10(a)(2), Vacate Award | 10(a)(4), Vacate Award | Arbitrability, Vacate Award | Attorney Fees, Vacate Award | Attorney's Fees, Vacate Award | Corruption, Vacate Award | Evident Partiality, Vacate Award | Exceeding Powers, Vacate Award | Excess of Powers, Vacate Award | Existence of Arbitration Agreement, Vacate Award | Fraud, Vacate Award | Manifest Disregard of the Law, Vacate Award | Public Policy, Vacatur No Comments »

Introduction: Can I Vacate, Modify or Correct this Award?

Vacate, Modify or Correct an Arbitration AwardYour business has just received an unfavorable arbitration award. The amount is substantial. The award seems legally wrong, factually indefensible, or procedurally unfair. Questions arise: Will a court vacate, modify or correct it? What would a court review? Where must or may the challenge be brought? How much time is available? And what information will arbitration-law counsel need? Continue Reading »

The Businessperson’s Federal Arbitration Act FAQ Guide III: Pre-Award Litigation under Chapter 1 of the Federal Arbitration Act—Gateway Disputes about Whether Arbitration Should Proceed (Part II)

February 4th, 2020 Arbitrability, Arbitrability | Clear and Unmistakable Rule, Arbitrability | Existence of Arbitration Agreement, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Authority of Arbitrators, Businessperson's FAQ Guide to the Federal Arbitration Act, Enforcing Arbitration Agreements, FAA Chapter 1, FAA Preemption of State Law, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 2, Federal Arbitration Act Section 3, Federal Arbitration Act Section 4, Federal Policy in Favor of Arbitration, First Principle - Consent not Coercion, Gateway Disputes, Gateway Questions, McCarran-Ferguson Act, Moses Cone Principle, Practice and Procedure, Pre-Award Federal Arbitration Act Litigation, Presumption of Arbitrability, Procedural Arbitrability, Questions of Arbitrability, Small Business B-2-B Arbitration, Stay of Litigation, Substantive Arbitrability 2 Comments »
gateway disputes

Gateway disputes, which concern whether parties are required to arbitrate a dispute on the merits, are the principal subject of pre-award Federal Arbitration Act litigation. In the last segment of this series, Gateway Disputes about Whether Arbitration Should Proceed (Part I), we answered a number of FAQs concerning gateway disputes, including who gets to decide those disputes:  

  1. What is the Difference between Pre-Award and Post-Award Litigation under the Federal Arbitration Act?
  2. What are Gateway Questions?
  3. Who Decides Gateway Questions?
  4. How do Parties Clearly and Unmistakably Agree to Submit Questions of Arbitrability to Arbitrators?
  5. Are there any Arbitrability Disputes that Courts Decide when the Contract at Issue Clearly and Unmistakably Provides for the Arbitrator to Decide Questions of Arbitrability?

Today we’ll answer some more FAQs about how gateway disputes are decided (or at least are supposed to be decided) by courts and arbitrators:

  1. What is the Presumption of Arbitrability?
  2. Does the Presumption of Arbitrability Apply to all Questions of Arbitrability?
  3. What Law Applies to Determine Gateway Disputes about Arbitrability to which the Presumption of Arbitrability does not Apply?
  4. How is Presumption of Arbitrability Applied to Resolve Gateway Questions about the Scope of an Arbitration Agreement?
  5. What Defenses, if any, Can Parties Assert against Enforcement of an Arbitration Agreement, and what Law Governs these Defenses?

The answers to these questions, along with the answers provided in Part I, will provide you with a solid foundation for understanding how pre-award Federal Arbitration Act litigation works and what to expect if your business is or becomes embroiled in it. The next segment will answer FAQs about the nuts and bolts of pre-award Federal Arbitration Act practice and procedure under Sections 2, 3, and 4 of the Act.

What is the Presumption of Arbitrability?

Back in 1983 the U.S. Supreme Court, in the landmark decision Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), famously declared that “[t]he [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” 

Continue Reading »

Small Business B-2-B Arbitration Part II.B.2(A): Other Structural Aspects of Pre-Dispute Arbitration Agreements—What am I Agreeing to Arbitrate?

January 2nd, 2014 Arbitrability, Arbitration Agreements, Arbitration Practice and Procedure, Authority of Arbitrators, Awards, Drafting Arbitration Agreements, Making Decisions about Arbitration, Small Business B-2-B Arbitration Comments Off on Small Business B-2-B Arbitration Part II.B.2(A): Other Structural Aspects of Pre-Dispute Arbitration Agreements—What am I Agreeing to Arbitrate?

In the last installment of our B-2-B Arbitration series we focused on one of the most important structural aspects of pre-dispute arbitration agreements: the mutual promise to submit disputes to arbitration, what it means and how its performance by the parties through their post-dispute submission defines and delimits the scope of authority parties actually delegate—as opposed to promise to delegate—to arbitrators to resolve particular disputes.

But there are other important structural aspects of arbitration agreements about which business people should be mindful if they wish to make informed decisions about arbitration. While a comprehensive discussion of them would be far beyond the scope of this post, let’s focus briefly on arbitration-agreement terms that bear on the following questions: Continue Reading »

Small Business B-2-B Arbitration Part II.A: The Nature and Purpose of Arbitration

July 12th, 2013 Arbitration Agreements, Arbitration Practice and Procedure, Authority of Arbitrators, Awards, General, Making Decisions about Arbitration, Mediation, Negotiation, Practice and Procedure, Small Business B-2-B Arbitration Comments Off on Small Business B-2-B Arbitration Part II.A: The Nature and Purpose of Arbitration

The long- and short-term success of a business is generally measured by the economic benefits it produces for its investors.  Most business decisions require a business to accept risks of varying severity and frequency if the business is going to realize a meaningful return on investment.  All else being equal, to increase the likelihood that those decisions will yield profits, the business must accurately assess all material risks, their corresponding benefits and the interplay between the two.

The same holds true for the decision whether to make an arbitration agreement part of a business transaction, and if so, on what terms.  But in the author’s experience otherwise savvy and intelligent small-business-persons frequently view an arbitration agreement as a throw-in term that isn’t likely to affect materially the risk-benefit calculus of the transaction as a whole.  These business persons are therefore likely to agree to arbitrate with a more economically powerful counterpart without giving the matter much thought, let alone the careful thought they devote to the price and performance terms of the deal.  This approach, as a number of business people have learned the hard way over the years, can result in a very frustrating and potentially debilitating one-two punch:  dashed reasonable expectations coupled with very little, if any, meaningful judicial review. Continue Reading »