MONCHARSH AND THE RISK OF ARBITRATION

(LONG PAST) TIME TO RECONSIDER LETTING ARBITRATORS MAKE MISTAKES

Written by John P. McGill*

I. INTRODUCTION

Moncharsh v. Heily & Blase⁰¹ has been on the books for 30 years and the obstacles it poses to review and vacatur are so firmly established⁰² and so well known that if a party seeks to appeal an arbitration award because it contains error and/or results in substantial injustice, the first response by any appellate attorney is to advise against it. The reason: Moncharsh denies review and vacating for errors of law or fact in an arbitrator’s decision. Indeed, Moncharsh and its progeny acknowledge and implicitly authorize arbitrators to make such errors and allows them to do so with impunity.⁰³ Consequently, fairness, equity, and a consistent application of the law are compromised.