The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 has cleared both the Senate and House and now goes to the President, who is expected to sign it into law. The Act invalidates any pre-dispute arbitration requirement for sexual assault or sexual harassment claims.

Judicial review of an arbitration decision is extremely limited. An arbitrator misapplying the law, misunderstanding the facts, or misconstruing a contract all fail to meet the high burden a litigant must meet to set aside a decision. Likewise, the arbitrator, not a reviewing court, decides the preclusive effect of a prior decision.

Much like judicial conflicts of interest, arbitrators must avoid even the perception of bias or partiality. Just as important, both parties have a significant interest in ferreting out any possible appearance of an arbitrator’s partiality prior to an arbitration. Even without actual bias, perceived partiality can support a court vacating a significant award and requiring the parties to go through the process a second time.

Litigants should remember that they typically cannot immediately appeal an order denying a motion to compel arbitration. More importantly, they should require plaintiffs to submit a claim to arbitration since it is their claim and not leave it up to the parties to fashion an arbitration process. The default should be in the absence of an arbitration claim, the court proceedings should be dismissed.

The Court found that the terms of a construction subcontract conflicted with the prime contract and applied the subcontract’s order of preference clause. The main takeaway, however, is that subcontractors should apprise themselves of any flow-down provisions contained in their subcontracts.

In a matter of first impression in the Fourth Circuit, the Court made clear that parties may waive in their arbitration agreement appellate review of an arbitrator's decision. While initial review of the decision in order to confirm or vacate the award may be made by a District Court, the parties may agree to foreclose further appellate review. If so, that choice will be honored.

In Amalgamated Transit Union, Local 1300 v. Maryland Transit Administration, the Maryland Court of Special Appeals reviewed the common law bases by which a reviewing court can vacate or reverse an arbitrator’s decision. Focusing on the third common law basis for reversal - public policy - the Court vacated the arbitrator’s decision and upheld the employee’s termination.

The Maryland Court of Special Appeals addressed addressed whether a party waives its right to arbitrate by failing to demand arbitration within the general civil statute of limitations. No, it does not. The Court also addressed who – the court or the arbitrator – initially determines whether a dispute is arbitrable. Usually, the arbitrator.