How Far Is Too Far: Reexamining the Continuing Extension of Arbitral Immunity to Arbitral Organizations

Authors

Elizabeth Wilhelmi

Abstract

The protection of arbitration proceedings from judicial inquiry is restricted not only by the limited grounds for vacatur, but also by the application of arbitral immunity, a protection derived from the judicial immunity applied to judges. This immunity strengthens the finality of arbitration by restricting judicial review of decisions protected by arbitral immunity, but at the same time, it raises the question of whether courts should give arbitration the same broad immunity that protects judges. Despite the differences between arbitration and the judicial system, the courts have applied arbitral immunity to the arbitrator's acts in the same way as they have applied judicial immunity to judges. Though mimicking the boundaries of judicial immunity, arbitral immunity has developed as a separate concept. In fact, courts have extended arbitral immunity to protect arbitral organizations, an entity which has no comparable counterpart in judicial proceedings. In Strategic Resources, Co. v. BCS Life Ins., Co., the South Carolina Supreme Court, with no discussion of the merits of the claim, extended immunity to the arbitral organization involved in the dispute and reversed the trial court's injunction against the American Arbitration Association (AAA). Although immunity of arbitral organizations is warranted in some situations, the broad application of immunity with no consideration of the particular facts of the case could weaken a party's confidence in the arbitration proceeding. In so doing, it would likely affect the attractiveness of arbitration proceedings as an option for dispute resolution.

Recommended Citation

Elizabeth Wilhelmi, How Far Is Too Far: Reexamining the Continuing Extension of Arbitral Immunity to Arbitral Organizations, 2006 J. Disp. Resol. (2006)
Available at: https://scholarship.law.missouri.edu/jdr/vol2006/iss1/20