| | | In a similar manner, the Illinois Court of Appeals, in | | Chicago, Southshore and South Bend Railroad v. Northern | | Indiana Commuter Transportation Dist., 682 N.E.2d 156, 159 | | (Ill. App. 3d 1997), rev'd on other grounds, 184 Ill. 151 | | (1998), refused to give effect to the provision of an | | arbitration agreement permitting a party claiming that the | | arbitrator's award is based upon an error of law "to initiate | | an action at law * * * to determine such legal issue." In so | | holding the Illinois Court stated: "The subject matter | | jurisdiction of the trial court to review an arbitration award | | is limited and circumscribed by statute. The parties may not, | | by agreement or otherwise, expand that limited jurisdiction. | | Judicial review is limited because the parties have chosen the | | forum and must therefore be content with the informalities and | | possible eccentricities of their choice." (citing Konicki v. | | Oak Brook Racquet Club, Inc., 441 N.E.2d 1333 (Ill. Ct. App. | | 1982)). |
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| | | In NAB Constructin Corp. v. Metropolitan Transportation | | Authority, 180 A.D. 436, 579 N.Y.S.2d 375 (1992) the Appellate | | Division of the New York Supreme Court, without engaging in | | any substantive analysis, approved application of a | | contractual provision permitting judicial review of an | | arbitration award "limited to the question of whether or not | | the [designated decision maker under an alternative dispute | | resolution procedure] is arbitrary, capricious or so grossly | | erroneous to evidence bad faith." (citing NAB Constr. Corp. v. | | Metro. Transp. Auth., 167 A.D.2d 301, 562 N.Y.S.2d 44 (1990)). | | This sparse state court case law is not a sufficient basis for | | identifying a trend in either direction with regard to the | | legitimacy of contractual opt-in provisions for expanded | | judicial review. |
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| | | 5. The negative policy implications and the uncertain case | | law outlined above were substantial reasons why the Committee | | of the Whole adopted a sense-of-the-house resolution at the | | July, 1999, meeting of the National Conference of | | Commissioners on Uniform State Laws not to include expanded | | judicial review through an opt-in provision. This decision not | | to include in the RUAA a statutory sanction of expanded | | judicial review of the "opt-in" device effectively leaves the | | issue of the legal propriety of this means for securing review | | of awards to the developing case law under the FAA and state | | arbitration statutes. Consequently, parties remain free to | | agree to contractual provisions for judicial review of | | challenged awards, on whatever grounds and based on whatever | | standards they deem appropriate until the courts finally | | determine the propriety of such clauses. |
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| | | 6. The Drafting Committee also considered a statutory | | sanction of "opt in" provisions for internal appellate | | arbitral review. Such a section in the statute would be | | significantly less | | troubling than the sanction of opt-in provisions for judicial |
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