Mediation and Arbitration

ORS 36.695
Remedies

  • fees and expenses of arbitration proceeding

(1)

An arbitrator may award punitive damages or other exemplary relief if such an award is authorized by law in a civil action involving the same claim and the evidence produced at the hearing justifies the award under the legal standards otherwise applicable to the claim.

(2)

An arbitrator may award reasonable attorney fees and other reasonable expenses of arbitration as may be specified in the arbitration agreement if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding.

(3)

As to all remedies other than those authorized by subsections (1) and (2) of this section, an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding. The fact that such a remedy could not or would not be granted by the court is not a ground for refusing to confirm an award under ORS 36.700 (Confirmation of award) or for vacating an award under ORS 36.705 (Vacating award).

(4)

An arbitrator’s expenses and fees, together with other expenses, must be paid as provided in the award.

(5)

If an arbitrator awards punitive damages or other exemplary relief under subsection (1) of this section, the arbitrator shall specify in the award the basis in fact justifying and the basis in law authorizing the award and state separately the amount of the punitive damages or other exemplary relief. [2003 c.598 §21]
Note: See note under 36.600 (Definitions).

Notes of Decisions

Under former similar statute (ORS 36.335)

Public policy does not prohibit arbitrator’s award of punitive damages where permitted by arbitration agreement and otherwise recoverable on underlying claim. Russell v. Kerley, 159 Or App 647, 978 P2d 446 (1999), Sup Ct review denied

Because arbitration proceeding is separate from abated court action, arbitrator’s determination of fact that appears on face of award or that was actually and necessarily included therein has preclusive effect in subsequent court proceeding. Westwood Construction Company v. Hallmark Inns & Resorts, Inc., 182 Or App 624, 50 P3d 238 (2002), Sup Ct review denied

In general

Because tenant and landlords did not explicitly agree or indicate in stipulation intent to “waive” or “vary the effect” of arbitrator’s authority under this section to “order such remedies as the arbitrator consider[ed] just and appropriate...”, arbitrator did not exceed scope of authority by ordering remedies like amount of money to be paid, method of payment, shifting of responsibility and time frame to have repair work completed. Couch Investments, LLC v. Peverieri, 270 Or App 233, 346 P3d 1299 (2015), aff’d 359 Or 125, 371 P3d 1202 (2016)

Source

Last accessed
May 26, 2023

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