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Hastings Law Journal

Abstract

The doctrine of quasi-judicial immunity insulates arbitrators from liability for their misconduct. Currently, the only remedy available for arbitrator misconduct is vacatur of the tainted award. This remedy does not, however, compensate the parties for the expenses and delays resulting from the failed arbitration process. Moreover, vacatur does not deter misconduct or provide an incentive for increased professionalism. In California, section 1280.1 of the Code of Civil Procedure codifies quasi-judicial immunity for arbitrators. This statute will expire on January 1, 1996, at which time the legislature will reconsider the need for absolute arbitral immunity.

This Note examines and rebuts the arguments in favor of absolute arbitral immunity. The Note then proposes a revision to California's arbitral immunity statute. This proposed code section is based on the common law qualified immunity that originally applied to most government officials. Proof of malice or a reckless disregard for the rights of a party to the arbitration will defeat the arbitrator's claim of immunity and enable a litigant to recover damages. This threat of liability also serves as a deterrent to misconduct. As growing numbers of disputants turn to arbitration for resolution of their disputes, there is an increased need for accountability and professionalism in the services that are provided by arbitrators. Adoption of a qualified immunity statute for arbitrators would address this need.

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