Rule 43(d)(ii) Is The Trap.
American Arbitration Association’s (“AAA”) Commercial Arbitration Rule 43(d)(ii) provides: “The award of the arbitrator may include: … (ii) an award of attorneys’ fees if all parties have requested such an award or it is authorized by law or their arbitration agreement.”(Emphasis added.)
Paul R. Wood and Thomas H. Wagner of the Polsinelli firm wisely advise litigants and their counsel that inclusion of a demand for fees in arbitration demands and responses likely creates a right to fees, in the arbitrator’s discretion, even though no other basis for recovery exists. They also prudently suggest that a respondent affirmatively allege that no fees are authorized when a claimant files an arbitration pleading requesting fees where no predicate for them exists.