Expense shifting in arbitration. Is Civil Procedure Offer of Judgment Rule 68 applicable in arbitration?
Where the civil procedure rules, related statutes and rules of arbitration adopted by parties in their contractual arbitration agreements are silent as to whether civil procedure rule 68 (FRCP) is applicable in an arbitration proceeding, can a party use such rule to obtain an award of attorneys fees and costs? In a recent case, a Nevada court recently ruled that Rule 68 and similar state statutes are “substantive” rules of law that are applicable to arbitration proceedings. See: WPH Architecture, Inc. v. Vegas VP, __ P.3d __, 2015 WL 6750051 (Nev. Nov. 5, 2015).
Practice recommendation: Parties can consider specifically providing in their contractual agreements to arbitrate that procedural rules such as Rule 68 of the FRCP are applicable in arbitration.