December 12, 2006
Motion practice, particularly dispositive motion practice, belongs in litigation, not arbitration, which was created as an alternative dispute resolution mechanism and is a creature of equity. Fairness, not arbitrariness, is the touchstone of equity. Fairness requires that public investors be provided due process via a testimonial hearing, not the mere filing of papers. Arbitration panels have every means at their disposal to discourage non-meritorious claims, and without a tesimonial hearing it is often impossible to judge the merits of a claim.
It is only through the crucible of a testimonial hearing with the right to confront witnesses that credibility can be properly assesed. Dispositive motion practice will only fuel the "big lie", add prohibitive cost to the small investor, and increase the growing popular perception that the capital markets are "rigged" against the public investor, without an adequate remedy.
Dispositive motion practice has no place in arbitration
Howard Rosenfield, Esq.