Arbitration and Art78 Proceedings

Question 1

What is arbitration?

Answer 1

Private procedure based on contract

Question 2

Are arbitrators bound by substantive law or rules of evidence?

Answer 2

No

Question 3

Is there scope for judicial review of arbitral proceedings?

Answer 3

Yes.

Question 4

What are the 5 instances where the court can intervene?

Answer 4

1. Did parties agree to arbitrate? Must be in writing; not signed; not mutual; but clear, express, and unequivocal
2. Is dispute within scope of arbitration clause?
3. Is arbitration clause valid? Fraud, duress, coercion can render invalid
4. Has any express condition precedent to arbitration been complied with?
5. SOL

Question 5

How do you stay litigation to enable arbitration?

Answer 5

In pending action, move for stay and to compel arbitration

Serve notice of intention to arbitrate; opponent must commence special proceeding to stay within 20 days receipt of notice (SOL so no extensions)

Question 6

What 3 grounds can you get to review arbitration awards?

Answer 6

1. Corruption, fraud, misconduct in arbitration proceeding
2. Partiality or bias of arbitrator chosen to be neutral
3. Arbitrator exceed powers (NY: cannot award punitive damages)

Question 7

What is an article 78 proceeding?

Answer 7

Authorizes special proceeding for judicial review of action/inaction by governmental or quasi-governmental officers or bodies of any kind

Question 8

What are the 4 grounds for an article 78 Proceeding?

Answer 8

1. Mandamus to compel
2. Prohibition
3. Certiorari
4. Mandamus to review

Question 9

What is mandamus to compel?

Answer 9

Compel performance of an act required by law, one to as to which no discretion allowed

Question 10

What is prohibition?

Answer 10

Proceeding to stop judicial officer from exercising power grossly exceeding officer’s lawful jurisdiction

Question 11

What is certiorari?

Answer 11

Proceeding to challenge the results of trial-type hearing conduct by administrative agency

Standard: was agency’s determination supported by substantial evidence in the record?

Question 12

What is mandamus to review?

Answer 12

Proceeding to review any other type of administrative action

Standard: was agency’s determination arbitrary and capricious?

Question 13

Where may the article 78 proceeding be brought?

Answer 13

Supreme Court

Question 14

What is S/L for Art 78 proceeding?

Answer 14

4 months from receipt of action being challenged

Question 15

What type of relief in Article 78?

Answer 15

Declaratory or injunctive (and damages incidental to main relief)