Dispositive motions have existed in arbitration almost as long as arbitration itself. Recently, however, arbitrators have witnessed an increase in requests for leave to file them. As more practitioners turn to arbitration to resolve disputes, they increasingly look to dispositive motion practice to cost effectively and promptly adjudicate them.
Yet, some arbitrators have questioned their authority to entertain dispositive motions. Others hesitate to dispose of the arbitration before it really starts when it may well be the claimant’s only course of redress. Still others, like the author, view dispositive motions as an opportunity to narrow and resolve issues fairly and efficiently. So where do arbitrators obtain the power to consider dispositive motions?
The Parties’ Contract
Like the arbitration itself, the authority often starts with the parties’ contract. The arbitrator can and will allow dispositive motions if the parties’ arbitration clause provides for them. Many litigants now specifically provide in their arbitration agreements that the arbitrator shall have the authority to resolve jurisdiction, arbitrability, and many other threshold or dispositive issues. Indeed, astute drafters will frame their arbitration clauses to include the right to bring a dispositive or threshold motion to avoid the arbitrator’s exercise of discretion. Arbitrators will typically enforce such clauses if both parties may reciprocally invoke them.