H.R.S. CHAPTER 658A
Effective Date: Starting July 1, 2004, Act will
govern any agreement to arbitrate, whenever made.
1. Arbitrator must disclose any facts that
a reasonable person would consider likely to
affect impartiality. The duty to disclose is
a continuing duty. Lack of disclosure may be
grounds for vacating an arbitration award. (Section
12).
2. Consolidations of separate arbitration matters
may be ordered by the Court unless the agreement
prohibits consolidation. (Section 10).
3. Interim relief and provisional remedies
may be ordered by the Court prior to appointment
of an arbitrator and by the arbitrator after
appointment. (Section 8).
4. Arbitrators are afforded immunity from civil
liability to the same extent as a judge of a
court. An arbitrator or arbitration organization
representative may not be compelled to testify
or produce records except with regard to vacature
of an award for fraud, corruption, evident partiality
or prejudicial misconduct. (Section 14).
5. As can be done in judicial proceedings,
full discovery, depositions, subpoenas may be
authorized by the arbitrator. (Section 17).
6. Punitive damages, awardable if authorized
by law in a civil action. Similarly, reasonable
attorney’s fees, expenses, arbitration
fees and expenses may be awarded. Arbitrator
empowered to award such remedies as are just
and appropriate. (Section 21).
7. Broader grounds to vacate arbitration awards.
In addition to the pre-existing grounds for
vacature (corruption, fraud, evident partiality,
exceeding authority, failing to consider all
material evidence, etc.), an arbitrator’s
conduct of a hearing “so as to prejudice
substantially the rights of a party” has
been added as grounds for vacature. (Section
23).
8. Expanded grounds for appeals provided. (Section
28). (This increases the potential for abuse
and delay in the arbitration process).
9. Many but not all provisions of the RUAA
may be waived. (Section 4). (Thus, arbitration
agreements may be customized to a great extent,
presenting a drafting opportunity and challenge).
The new Arbitration Act resolves and answers
many issues that existed under the old Arbitration
statute. But, the new Act makes the arbitration
process more like litigation with potentially
costly full discovery and additional appeal opportunities
and expanded appeal grounds. Persons who are contemplating
submission of a dispute to arbitration under the
new Act or who are considering including an arbitration
provision in their contracts and agreements should
consult counsel. Careful consideration should
be given to customizing an arbitration agreement
to suit the special needs and circumstances of
the persons and parties involved.
