B. Comment on the Concept of Contractual Provisions for "Opt- In" Review of Awards

1. During the course of the Drafting Committee's deliberations between 1996 and 2000, no issue produced more discussion and debate than the question of whether Section 23 of the RUAA should include a provision that the parties could "opt in" to judicial review of arbitration awards for errors of law or fact or any other grounds not prohibited by applicable law.

There are certain policy reasons both for and against the adoption of a provision in the RUAA for expanded judicial review of an arbitrator's decision for errors of law or fact. The value-added dimensions considered by the Drafting Committee were three. First, there is an "informational" element in that such a provision would clearly inform the parties that they can "opt in" to enhanced judicial review. Second, an opt-in provision, if properly framed, can serve a "channeling" function by setting out standards for the types and extent of judicial review permitted. Such standards would ensure substantial uniformity in these "opt in" provisions and facilitate the development of a consistent body of case law pertaining to those contract provisions. Finally, it can be argued that provision of the "opt in" safety net will encourage parties whose fear of the "wrongly decided" award previously prevented them from trying arbitration to do so.

The Drafting Committee weighed these value-added dimensions against the risks/downsides of adding "opt in"provision to the Act. There are several risks and downsides. Paramount is the assertion that permitting parties a "second bite at the apple" on the merits effectively eviscerates arbitration as a true alternative to traditional litigation. An opt-in section in the RUAA might lead to the routine inclusion of review provisions in arbitration agreements in order to assuage the concerns of parties uncomfortable with the risk of being stuck with disagreeable arbitration awards that are immune from judicial review. The inevitable post-award petition for vacatur would in many cases result in the negotiated settlement of many disputes due to the specter of vacatur litigation the parties had agreed would be resolved in arbitration.

This line of argument asserts further that an opt-in provision would virtually ensure that, in cases of consequence, losers will