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CEB DailyNews: How to Preserve Appellate Rights in Your Arbitration Agreement

Tim Kowal     November 13, 2023

CEB’s DailyNews has published my article, “How to Preserve Appellate Rights in Your Arbitration Agreement.” The article illustrates how to use the California Supreme Court’s suggestion in Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334 that parties agreeing to arbitration may also agree that the award be subject to judicial review on the merits. The case is Hous. Auth. of City of Calexico v. Multi-Housing Tax Credit Partners XXIX, L.P. (D4d1 Aug. 28, 2023) No. D079967. The court quotes the language you should use in your arbitration agreements to preserve appellate review.

But the parties there hit a snag: does the trial court have to review the arbitration award on the merits? The trial court thought it did not need to review the arbitration award on the merits and instead left that to the Court of Appeal. But the Court of Appeal said that’s not how appellate review works: the trial court has to review the merits first.

The takeaway is: Don’t overlook the option in your arbitration agreements to make them subject to judicial review. This is an option not available under the Federal Arbitration Act, but it is available under the California Arbitration Act. But be sure your preservation of appellate review is explicit and unambiguous.

The original article is here.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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