07 May 2021

Another Quirk of Arbitration

Arbitrators can administer oaths and issue subpoenas under the relevant section of the Uniform Arbitration Act (adopted in some form in 35 states and codified in Colorado at Colorado Revised Statues § 13-22-217(1)). 

The Act states in pertinent part: 
An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena issued under this section shall be served in the manner for service of subpoenas in a civil action and, upon motion to the court by a party to the arbitration proceeding or by the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.
Perjury in those cases could be prosecuted by a District Attorney or the state's Attorney General as a crime. 

As the Acts note, it takes a government appointed judge's order to enforce the subpoena. 

This language of the Uniform Arbitration Act is interesting because usually oaths can only be administered by government officials who take oaths of office themselves, or by a notary public who takes an oath of office upon receiving a government approved commission. 

The power to issue subpoenas is likewise usually limited to government appointed court clerks who swear an oath of office, to state licensed attorneys who swear an oath of office and sometimes to certain other sworn government appointed enforcement officers of regulatory agencies. 

But being an arbitrator isn't a regulated profession under the Uniform Arbitration Act, or under the laws of the vast majority of states. The parties to the contract decide who serves in that capacity. 

A nineteen year old high school dropout with felony sedition and perjury convictions who is an undocumented immigrant and is incarcerated at the time of the arbitration is still legally eligible to serve as an arbitrator. One can't be "disbarred" from serving as an arbitrator either.

This significance of this is somewhat diminished by the fact that both of these powers require the intervention of a judge in a court proceeding to be enforced, however (as does enforcement of an arbitration award involuntarily).

But, the Uniform Arbitration Act didn't have to make this unique exception. Other options could easily have been chosen instead.

Offering unsworn false testimony in an arbitration hearing would still usually constitute the crime of fraud. And, the perjury act could similarly have been amended to provide that unsworn testimony in an arbitration proceeding was punishable as perjury if an unsworn affirmation to that effect was made in the proceeding.

The Uniform Arbitration Act could have provided that arbitration subpoenas are issued by the clerk of the court of general jurisdiction where the arbitration is being held, or by a licensed attorney for a party in the case, just as it would be in a regular court case. 

Indeed, there is much to be said for imposing such a restriction, because how is an average person receiving a subpoena issued by an arbitrator supposed to know that this person, who outside of a contract written by private individuals is nobody special, has the power to exert this authority over them.

Alternately, the Uniform Arbitration Act could have required arbitrators acting under the Act to be commissioned by the state in a manner similar to that of a notary public or an attorney, subject to some sort of minimum standard to be appointed and subject to having the commission revoked for misconduct.

As a practical matter, it isn't a big problem. 

Almost no one is ever prosecuted for perjury for testimony in a judicial or quasi-judicial proceeding anyway, and perjury prosecutions for lying in arbitration proceedings are vanishing rare, so the administration of oaths or affirmations under penalty of perjury has little practical effect.

Likewise, while arbitrators could just be anybody, and this provision of law could be used to manipulate arbitration proceedings for improper purposes, for example, to gain access to otherwise confidential information in connection with a bogus arbitration which is really just a pretense to gain subpoena power, for whatever reason, this is very rarely done. 

The vast majority of arbitrators are attorneys, or if they are not attorneys, are distinguished professionals who are familiar with the Uniform Arbitration Act and Federal Arbitration Act and their roles within it.

Few arbitrators actually issue subpoenas on a regular basis, even though they can, and many don't bother to swear in witnesses, especially if they are not attorneys. And, there are reasons to have non-attorney arbitrators, especially in employment or construction or accounting or appraisal or marital dispute arbitrations with a narrow scope where the technical or religious expertise of the arbitrator is more important than general legal expertise.

But these anomalies are nonetheless notable.

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