THE REASONED ARBITRATION AWARD IN THE UNITED STATES: ITS PROMISE, PROBLEMS, PREPARATION, AND PRESERVATION

The Reasoned Arbitration Award in the United States examines and criticizes the continuing tilt in USarbitration toward "standard" awards, those that contain no reasons or explanations for their outcome. It shows that US arbitrators often do not fully explain their awards, and courts too often uphold such awards as"reasoned." The Reasoned Arbitration Award is a highly impressive treatise worthy of a place in the library of any arbitrator, arbitration advocate, court, or student of arbitration – including professors and anyone else educating or training arbitrators. It also is essential reading for scholars and practitioners writing on domestic arbitration. Most stakeholders in mainstream (lawyered) commercial arbitration will find the work to be a critical reference that they routinely consult whether it is to learn more effective award writing or, for practitioners, more effective arbitration pleading.

John Burritt McArthur explains the error of the widespread misconception that "silent" awards – awards that provide no reasons for their decisions – are less prone to challenge and, are necessarily cheaper to prepare and therefore more practical than fully reasoned awards. The Reasoned Arbitration Award in the United States shows that US courts tend to uphold such awards as reasoned, and explains why this erroneous judicial approach undermines the legitimacy of U.S. arbitration. In addition, McArthur extensively analyses each ground of vacatur and its success rate via a study of the opinions grouped in pertinent Westlaw keynotes over the eight years 2010-2017. Four appendices contain convenient case synopses of opinions vacating awards for, respectively, exceeding powers (App. D, analyzing 41 awards vacated on this ground); manifest disregard (App. D, analyzing ten of these rare "Black Swan" vacaturs), violating public policy (App. F, analyzing 23 vacated awards), and evident partiality (App. F, analyzing 14 vacated awards). These materials are a gold mine for practitioners, arbitrators, judges and teachers.

The Reasoned Arbitration Award in the United States addresses the major problem created by the lack of a clear, effective definition of reasoned awards.  It analyzes in detail the unreasoned awards that courts, beginning with the Eleventh Circuit in Cat Charter, have confirmed as reasoned. And it explains in detail, section by section, how to write a properly reasoned award. It:

• Provides a clear and effective definition of “reasoned award”;
• Shows the right way for courts to review awards by describing opinions that do require real reasons and vacate unreasoned awards;
• Analyses, in contrast, awards that lack comprehensible reasons and opinions that confirm them anyway, beginning with the Cat Charter award and opinion;
• Discusses how to write each section of a reasoned award in six “how-to” chapters;
• Illustrates good and bad awards with dozens of examples;
• Makes the full text of 12 inadequately reasoned awards and 10 well-reasoned awards available to readers online for further study;
• Identifies the six main categories of unreasoned awards trying to pass as reasoned;
• Explains why the criticisms that reasons make awards vulnerable and too costly are incorrect;
• Compiles vacatur rates for each ground of vacatur over an eight-year period as evidence that the vulnerability theory is incorrect;
• Recommends reforms that will strengthen the clarity and legitimacy of reasoned awards.

This thought-provoking work argues persuasively that the effectiveness and desirability of arbitration is at stake in the current disarray over reasoned awards because it is only through truly reasoned awards that arbitrators can give the parties proof that they have been heard.