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Arbitrators and Newly Issued Appellate Decisions: A Duty to Disclose?

Thursday, December 04, 2025 11:33 AM | Anonymous
Can I Appeal the Court's Decision?

At the end of a hearing in a complex case, the arbitrator[s] usually asks the parties to submit post hearing briefs. If the arbitrator[s] know of a game-changer recent appellate court ruling that has never been raised by the parties in pre-hearing briefing, should the arbitrator mention the case to the parties and ask them to brief it as part of their post-hearing submissions?

What are your thoughts?


Comments

  • Thursday, December 04, 2025 1:10 PM | Stephen weber
    I would absolutely disclose it to all parties.
    In my opinion, this is not fall into the category of favoring one side or the other, but is an attempt to make sure that the decision is based on informed arguments of the law
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    • Thursday, December 04, 2025 1:21 PM | Philip Glick
      Yes, it should be briefed and become part of the case. If not, and the parties are unaware of the new matter, there may be some level of failure to disclose, and justice requiresthat relevant rulings, which may bear on the award correctness, be open to all sides.e
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    • Thursday, December 04, 2025 1:22 PM | Gerald Harris
      When you start from the premise that an arbitrator’s duty is to render a just result and not just reward the better presentation, the answer seems obvious. The parties should be given an opportunity to distinguish their case from the appellate ruling or demonstrate that it applies and should govern the result.
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    • Thursday, December 04, 2025 2:04 PM | Paul Marrow
      You had best check the law on this. FINRA doesn't allow it and ditto for may other arbitration forums. See Marrow, NYSBA Journal, May 2013 at 24-31.
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  • Thursday, December 04, 2025 1:20 PM | Daniel Feinstein
    If it is 100% on point, I'd ask the parties to address it. If there is anything that distinguishes it at all, I would not. The parties presumably are making reasoned and informed decisions about how they present their case / defense. Barring very usual circumstances, I'm not going to raise something, either factual or legal, that they do not.
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  • Thursday, December 04, 2025 1:24 PM | Lucy Inman
    I agree with Stephen and Gerald. I would disclose the decision and offer counsel the opportunity to file supplemental briefs. I would not require it.
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  • Thursday, December 04, 2025 1:41 PM | Karen J. Orlin
    Years ago, while serving as a wing panelist in a complex securities arbitration case on the FINRA DR platform, I attended a seminar co-sponsored by FINRA in which I learned of a recent SEC regulation directly related to a substantive issue of that case. When questioning an expert witness who spoke to that issue, I inquired whether that expert witness was aware of that regulation and, if so, whether that expert witness believed the the regulation was relevant to that case. Counsel for both parties objected to the expert witness' answering that question, explaining that neither counsel believed that the new regulation was relevant to the case, so I withdrew my question. The panel Chair reported the incident to the FINRA case manager, who telephoned me to urge me never again to engage in any legal research or mention during any FINRA arbitration hearing any legal authority of which I was aware otherwise than from submissions on behalf of the parties to the instant arbitration case. I have encountered AAA arbitrators who regularly engage in independent legal reseach regarding cases on which they serve as arbitrators and disclose the results of that research to parties' representatives in the respective cases, however.
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  • Thursday, December 04, 2025 1:49 PM | Lee Hornberger
    Abrams, Inside Arbitration (2013), p. 279, says:
    "There are times when the arbitrator believes that the parties are missing a very important part of the case, and it is almost impossible to resist inquiring. Yet the parties might be intentionally avoiding that issue. There may be reasons for their reluctance to get into a particular area of inquiry, and the arbitrator must let the parties be."
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    • Thursday, December 04, 2025 2:01 PM | Paul Marrow
      Correct. See Marrow, NYSBA Journal, May 2013 at 24-31
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  • Thursday, December 04, 2025 2:00 PM | Paul Marrow
    The issue here is can an arbitrator do unauthorized legal research. In the case described here the answer is that if the arbitrator mentions the case, he/she found, has that arbitrator taken sides? Is this bias? And has the arbitrator exceeded authority? Some may say that the arbitrator is doing what any lawyer or judge would do. Why can't an arbitrator insist on applying law? Doesn't the law trump any complaints about bias, etc.? Sorry, the arbitrators first obligation isn't to the law, unless the parties specify that law will apply, but to the terms of the arbitration clause. If the clause doesn't mention research, then it would seem that doing such is not within the scope of the arbitration clause. In this case, the arbitrator should have told the parties he/she wanted to do legal research before doing anything and with their permission the arbitrator could proceed. The parties aren't required to specify a particular law or any law for that matter. They can say that they are willing to let the arbitrator do what that person feels is appropriate. Has anyone been hurt by these rules? If an award isn't precedent, no one outside of the four corners of a case are impacted. This is where parties have control. For anyone wanting a full discussion of this issue, see Marrow, NYSBA Journal, May 2013 at 24-31
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  • Thursday, December 04, 2025 2:01 PM | Augustus RIchardson
    First, I agree that an arbitrator should not be doing independent legal research. But second, if there is a recent (or even not-so-recent) appellate decision that the arbitrator is aware of, and is directly on point (so much so that it could lead to judicial review of the award on a point of law), then I think the arbitrator is bound to draw the attention of the parties to the case. One of the duties of an arbitrator is to ensure that their award is as review-proof as possible, and one way to do that is to make sure the parties are aware of such decisions and deal with it.
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    • Thursday, December 04, 2025 2:08 PM | Paul Marrow
      You are assuming the parties want the law to apply. What if the arbitration clause is silent on the issue of researching the law and the clause fails to specify that law will apply? Arbitrators aren't judges. Judges are there to enforce and apply the law. But an arbitrators first obligation is to the terms of the arbitration clause. If researching isn't mentioned, then an arbitrator who does it is exceeding authority and taking sides.
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  • Thursday, December 04, 2025 2:14 PM | Jack Marshall, KC
    I have just had this situation arise. My colleagues and I decided that the case was one we would need to address in writing the Award as we are to decide in accordance with the law. We advised the Parties of the new authority and invited them to file briefs, which they did. I believe this is the correct practice.
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    • Thursday, December 04, 2025 3:10 PM | Howard F. Kline
      Jack, you raise an interesting point and one that I should have considered in my earlier response. I would feel compelled to advise both parties of the case and request that they brief it if, the failure to address the case would clearly lead me to issue an award that was not in compliance with the law.
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    • Thursday, December 04, 2025 9:59 PM | Nahendran Navaratnam
      Absolutely agree.
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  • Thursday, December 04, 2025 2:14 PM | Henry Parr
    I would be reluctant to mention a specific case. at most, i would ask the parties if they have anything further to present
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  • Thursday, December 04, 2025 2:25 PM | Howard F. Kline
    This is a great question and an issue that I have considered several times. If the case is one that significantly favors one party over the other, I would not advise the parties of the case. If, on the other hand the significance of the case can be reasonably debated between counsel and the case at hand may be distinguishable than I would be more inclined to advise counsel of the case and ask them to brief it. The question becomes, perhaps more difficult to answer if one of the parties is pro per. Overall, I am very reluctant to put my finger on the scale.
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  • Thursday, December 04, 2025 2:29 PM | Robert L. Arrington
    I agree with my colleagues who would mention the case and permit supplemental briefs.
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  • Thursday, December 04, 2025 3:05 PM | J B Cross
    There seem to be two situations under discussion. One is that an arbitrator is aware of relevant case law, that has not been addressed by either party. I would say that the case law should be mentioned and an opportunity allowed to the parties to address it. The second is that an arbitrator, in consideration of the case, does independent research, beyond the case law and issues argued by the parties. In this second situation, I would think that an arbitrator should not go outside of the issues and cases argued by the parties. The issue is fairness and disclosure. The disclosure should be made as soon as the arbitrator becomes aware that the case law has not been addressed. After the close of the hearing, there is no practical way either party to respond.
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    • Thursday, December 04, 2025 3:42 PM | Edward Moss, Colorado
      When an arbitration agreement provides that the matter is to be controlled by the substantive law of “X” jurisdiction, then the matter should be controlled by the law of that jurisdiction. It should not be decided by some outdated, historical law of the jurisdiction that is no longer applicable. If the parties want to bind the arbitrator’s decision by the law of a jurisdiction as it existed on a certain date, that is easily included in the agreement. I have occasionally seen such provisions. But in the absence of such a provision, the award should accurately reflect the substantive law of the jurisdiction. If the parties have not cited a case, statute, or regulation which the arbitrator believes is applicable, they should be given an opportunity to it.
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  • Thursday, December 04, 2025 3:40 PM | John Shope
    If the case of which I have learned bears on a point that the parties have argued, I would note that I have read reference to the case and ask the parties to address it if they deem it pertinent. On the other hand, I would be disinclined to raise it if it is on a line of claim or defense that no one has raised, and therefore likely waived. To me this approach strikes the appropriate balance between maximizing the chance of getting the law right and not being perceived as favoring one side or the other.
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  • Thursday, December 04, 2025 3:42 PM | David E. Robbins
    This is one of your easiest questions. The answer is: Of Course. Especially if the decision could have an impact on the Award.
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  • Thursday, December 04, 2025 3:57 PM | Chris Kimble
    I also would not raise the case if it tended to tip the scales in favor of one party. The one exception I have made to that general rule is in the area of judicial estoppel. Years ago I had a case in which the competency of an individual was a central issue. Respondent attached several documents to a brief, including one that indicated clearly that Claimant had previously taken an inconsistent position regarding the competency of the individual during the relevant time frame and had obtained judicial relief based on that position. Respondent counsel missed the obvious judicial estoppel issue. I felt the doctrine of judicial estoppel compelled me to raise that issue and rule against the Claimant in order to protect the sanctity of the prior court’s ruling.
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  • Thursday, December 04, 2025 4:10 PM | Anonymous
    I would say emphatically yes the arbitrator should raise the new opinion. Arbitrators are very limited and should not do general independent research, but if they learn that the law briefed to them has arguably been altered, they are entitled to rule based on the correct applicable law. But they must give the parties a chance to comment on the case.
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    • Thursday, December 04, 2025 4:11 PM | Anonymous
      That last comment is by John McArthur. I did not intend it to be anonymous.
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  • Thursday, December 04, 2025 4:20 PM | Thomas Hanrahan
    I think this is relatively easy. I would not, in the first instance, mention the case to the parties, but wait to see if they address it in their briefs. If not, and if I think it is outcome-determinative (or even very influential), I would invite supplemental briefing. The last thing you want to do is rely on the recent case without giving counsel a chance to address it. A close second thing to avoid is ignoring governing law (especially where the agreement has a choice of law provision, or the initial preliminary hearing order has otherwise identified the governing law).
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  • Thursday, December 04, 2025 5:39 PM | Dave Miller
    Absolutely
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    • Thursday, December 04, 2025 11:38 PM | Pierre de Ravel d'Esclapon
      A variation that does not appear to have been the subject of comments: the parties in their post hearing brief cite various cases.Is anyone suggesting the as arbitrator one should not check whether the cases are accurately quoted ( or even exist?) ? Isn't that check doing independent research? What if in so doing you find the case relied upon by Claimant (or by Respondent mutatis mutandis) has been overruled by an appellate court (i)before the filing of Respondent's brief or (ii) after filing of respondent's brief (iii) after all briefs have been filed? What do you do ?
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      • Friday, December 05, 2025 7:23 AM | Geoffrey BH
        Neutral questions to both, "[citation] has come to my notice."

        If you intend to dig deep, tell them. "I am minded to look further into [citation or fact}."
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  • Friday, December 05, 2025 7:09 AM | Geoffrey BH
    Ah. a classic leading question.

    First, why was the ruling not mentioned at the hearing?

    Next, if the ruling comes to the arbitrator's attention at any time before the award is made and declared, the best practice, in my opinion, would be a neutral question, "Do I need to take note of [citation]?"

    Then (and opinions may be mixed) after the Award is declared, merely. "[citation] has come to my notice are the parties aware of it?"

    In my opinion the Parties have not intended to have a purely legal decision They expect a decision that is right and fair'

    - at least that;s what I used to teach!
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  • Friday, December 05, 2025 10:05 AM | Larry Weinstein
    This is a great topic. The hypothetical Jeff proposed does not assume that the arbitrator did legal research at the arbitrator's own volition. It is generally recognized that arbitrators should not do this, absent a provision in the arbitration agreement (which provisions are vanishingly rare) permitting or encouraging arbitrator independent research, or a request by the parties during the proceeding (equally rare). The hypothetical simply assumes that the arbitrator becomes aware of a potentially important recent appellate ruling. That situation isn't nearly as unusual as one might think, and I have encountered it on occasion both in cases in which I was a tribunal member and in cases where I was the sole arbitrator. Arbitrators often have legal expertise related to a particular case (which is often the reason they are selected) and tend to stay current in their area of expertise. Thus, an arbitrator learning about a relevant uncited case without doing case-specific independent research actually happens from time to time. One thing I think is or should be entirely uncontroversial is that in such a situation, the arbitrator should not incorporate the uncited-by-the-parties decision in the Award without first giving the parties the opportunity to comment on it. In deciding whether or not to notify the parties of an uncited decision that comes to the arbitrator's attention, I don't think it is the least bit relevant whether the decision is seen by the arbitrator to favor one party or the other, or as neutral or uncertain. If the arbitrator thinks the decision not cited may be relevant, the arbitrator should notify the parties, regardless in whose favor the decision might cut. That is neutrality. I have never encountered a situation in which both parties, having been informed of an uncited decision, advise the arbitrator not to consider it in rendering the Award. I suspect this is quite uncommon. But my gut reaction is that in such a case, in the absence of language in the arbitration agreement compelling a different result, the arbitrator should abide by the parties' wishes.
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  • Friday, December 05, 2025 10:46 AM | Igor Ellyn
    I agree that the Arbitrator should mention important caselaw and ask client to brief the arbitrator on its impact.
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  • Friday, December 05, 2025 11:21 AM | Anonymous
    Yes
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