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I am representing myself in arbitration proceedings against a large business.

The American Arbitration Association is orchestrating the proceedings and has stated that the Consumer Arbitration Rules apply.

The rules do not give any guidance on important non-procedural elements: the standard of proof (is it akin to civil? criminal?), determination of relevant law, what cases can be cited, admissibility of evidence, etc. Where can I find answers to these questions?

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The rules do not give any guidance on important non-procedural elements: the standard of proof (is it akin to civil? criminal?), determination of relevant law, what cases can be cited, admissibility of evidence, etc. Where can I find answers to these questions?

Generally, arbitrators apply the substantive law of the jurisdiction applicable to the dispute, and the procedural rules of the arbitration forum, and their own views when neither applies.

But this is not a legally enforceable obligation of an arbitrator. An arbitrator can grossly disregard the law and need not follow any rules of evidence other than to allow you to present all relevant evidence. If the arbitrator wants to apply the Pirate Code of a Hollywood Film, the arbitrator is within his or her authority to do so and will not be reversed for doing so when the prevailing party seeks to have the award confirmed.

Also, while you can seek to set aside an arbitration for particularized bias in a given case, you generally cannot do so out of systemic bias in favor of the party drafting the arbitration clause, even though that is well established empirically.

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  • This is not strictly true. When the parties have agreed (which they may have in the arbitration agreement or subsequently) on a methodology, the arbitrator must follow it or a court will overturn the award. When they have agreed then the arbitrator has discretion. – Dale M Mar 9 at 2:00
  • @DaleM At least under U.S. law and the federal arbitration act, the failure of the arbitrator to follow the agreed rules is basically unreviewable. – ohwilleke Mar 9 at 2:03
  • under the various Commercial Arbitration Acts in Australia it’s one of the (very few) grounds for appeal. – Dale M Mar 9 at 3:50
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    FWIW, I asked my particular arbitrator "Should a claim reference to substantive law only? Or will you allow references to general principles of equity and fairness?" and they replied "I will consider substantive law and equity/fairness". – Josh Johnson Mar 10 at 21:40
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    @JoshJohnson The systemic bias of the arbitrators in consumer arbitration and lack of a right to appeal overwhelm all other considerations. – ohwilleke Mar 12 at 6:52

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