Construction Arbitration Clause Calling for
Expanded Judicial Review Must be
Explicit and Unambiguous
July 28, 2011 by Robert Sturgeon
Parties to construction arbitrations who are disappointed with the arbitrator's
award are often doubly-disappointed to learn that they have very little chance of
successfully appealing in a court to overturn the arbitrator's decision. Because
arbitration is intended to be a final and complete alternative dispute resolution
process, judicial review of the arbitrator's award is quite limited. Ordinarily a
court may not review the merits of the dispute, or overturn an arbitration award
on ground that the arbitrator made legal errors or erred in applying the law to the
facts. In general, a court is authorized to overturn an arbitration award only
where (i) the award was procured by corruption or fraud; (ii) there was
corruption or misconduct by the arbitrator, (iii) the arbitrator exceeded his or her
powers, (iv) the arbitrator refused to postpone the hearing despite there being
good cause to do so and that prejudices the parties, or (v) the arbitrator failed to
disclose potential grounds on which he or she could be disqualified or refused to
To expand the scope of judicial review beyond these parameters and obtain
something akin to an ordinary right of appeal, parties have attempted to
"contract around" the statutory provisions, and have included language in their
arbitration agreements providing for appeal or judicial review of the substance of
the arbitrator's decision. In a recent decision, the California Court of Appeal held
