Publication of Formal, Sophisticated Rules of Procedure
By developing and publishing formal rules of procedure that constitute and govern its arbitration processes, the BDA gained the respect and acceptance of secular legal authorities. The American legal system places great importance on procedural fairness in both formal adjudicatory and ADR contexts. Indeed, although courts generally cannot refuse to enforce an arbitration award because a reviewing judge disagrees with the substance of the arbitral ruling, they can vacate arbitral awards for a variety of procedural irregularities and injustices in the arbitral process. Thus, when faced with motions to confirm arbitration awards and processes based on religio-legal norms, where the substantive fairness of the arbitral tribunal’s application of its own religious norms may not be apparent to the court, a judge can nevertheless take confidence that the “procedural rules ... protect vulnerable parties.”
Caryn Wolfe has identified several procedural protections that, if embraced by arbitration tribunals, result in American courts being willing to enforce their awards. They include the entitlement of parties to adequate notice that arbitration proceedings are underway, the right to representation by an attorney, the duty of arbitrators to disclose facts relating to their impartiality, and the inability of parties to agree to unreasonable restrictions on these basic protections. If arbitration tribunals fail to formally provide for and protect these procedural safeguards, Wolfe argues, courts will regularly refuse to enforce their awards.
Recognizing the basic truth of this concern for procedural fairness, the BDA adopted and published detailed procedural rules. Rather than attempting to justify the substance of each award by trying to explain to secular courts the religio-legal norms upon which the award is based, this institution has crafted rules and procedures that clearly explain what litigants can expect of the arbitration process: adequate notice, opportunities for discovery, standards for the admissibility of evidence, methods for challenging the impartiality of the arbitrators, and so on.
Therefore, when a court is asked to enforce a BDA award, it need not rely on the historical traditions and religio-legal corpuses of Judaism; instead, a secular judge can take confidence in the knowledge that these arbitral processes incorporate familiar important procedural guarantees. In addition to these rules providing formal protections to parties, their structure and detailed nature comforts secular judges. Jewish and Islamic courts traditionally maintained fairly complex procedural standards. The BDA gained the confidence of secular courts by reformulating these using language and structure familiar to them.
Written in lawyers’ English, and organized along lines similar to the procedural codes used by secular courts, the Rules and Procedures of the Beth Din of America outline an arbitration process that is largely recognizable to judges entrenched in American or British civil procedure. Additionally, the BDA has added new procedures that do not contradict Jewish law when such protections are considered absolutely necessary by prevailing state law. The development of formal rules of procedure by the BDA has thus been more a departure from traditional norms than an abrogation of the substance of religio-legal rules. The Beth Din of America has published these rules on its website, and they thus help a layperson understand what to expect procedurally during the process of religious arbitration. To a lawyer or judge, these rules look much like the Federal Rules of Civil Procedure; they set out requirements such as the number of days between filing and response. They describe matters such as discovery, motion practice, transcription, and the appropriate place to file items. They also establish the proper language for hearings, the procedure for compiling a record, waiver doctrines, notice provisions, and other rules of procedure.
Consistent with basic principles of fairness and due process in the arbitration context, as well as with traditional Jewish law, the BDA’s rules provide that no party can be subject to arbitration in the BDA against his or her will. A dispute can come before the BDA in only one of two circumstances: either the case arises from a contract or other prior dealing subject to a valid arbitration clause in which the parties agreed to resolve their disagreement through the BDA arbitral process, or one party requests BDA arbitration after a dispute has arisen and obtains the opposing party’s agreement through the execution of a legal arbitration agreement. If a party declines to arbitrate before the BDA in violation of a previously executed arbitration agreement, the BDA will extend the permission required under Jewish law to the other party to proceed to a secular court for the enforcement of a default judgment. Alternatively, the BDA might issue a seruv, which is a Jewish legal document publicizing the recalcitrant party’s refusal to appear, as a means of bringing social pressure to bear with the hope of convincing the disputant to arbitrate. If the parties did not previously sign a valid BDA arbitration agreement, a disputant has no obligation to appear, despite the other party’s request that he do so, provided that the refusing party is willing to resolve the dispute through some other means sanctioned by Jewish law, such as in another beit din, or by using a third-party arbitrator. Only if a Jewish disputant refuses to appear in any appropriate forum might the BDA issue a seruv against him in an effort to convince him to resolve the dispute through means sanctioned by Jewish law consistent with his religious obligations. Consonantly with both American and Jewish law, however, under no circumstances will the BDA arbitrate a dispute unless both parties agree to do so.
Upon the commencement of arbitral proceedings, the BDA rules provide that the Av Beth Din (literally "The Head of the Beth Din”—the Chief Justice at the head of the BDA hierarchy) shall designate approved arbitrators from the BDA’s list to hear the case. Again, consistent with Jewish law and secular law due process requirements, the rules provide that the parties shall be given notice of the identities of the designated arbitrators, and that either party may seek to remove an arbitrator for bias or interest. Additionally, the rules impose an obligation on each arbitrator to disclose any interest he may have in a case, irrespective of whether his impartiality is challenged by a party.
Once the arbitrators have been chosen and the action commences, parties experience a process very similar to that of a secular court, but consistent with normative halakha. Parties may hold a preliminary conference during which they create a schedule for discovery, stipulate to undisputed facts, and identify documentary evidence to be produced and witnesses to be called. The actual arbitration hearing consists of opening statements, followed by each party presenting its claims and evidence. Before closing the hearing, the arbitrators must specifically inquire whether either party has anything to add, and the arbitrators may close the proceedings only upon negative responses by each party. Under the rules, the BDA arbitration panel must issue a ruling within three months after closing the hearings on a case; the award, which must be agreed upon by at least a majority, must be made in writing and in English, and must be personally served on the parties.
The BDA rules also include clear procedures for taking evidence. Parties may present any evidence they wish, including documents, witnesses, or affidavits, but the arbitrators retain the authority to determine the relevance and materiality. Importantly, the rules state that evidence may only be taken in the presence of the entire arbitration panel and both parties, and that any ex parte communications between arbitrators and parties or arbitrators and witnesses is strictly prohibited. In order to protect the integrity of the BDA arbitration process, any communications a party or witness wishes to convey to an arbitrator outside of a formal hearing must first be directed to the Av Beth Din, who determines whether to transfer the information to the arbitrator.
BDA rules further require the Av Beth Din to arrange for the electronic recording of all arbitration proceedings unless both parties waive their right to such a record. Additionally, at the request of any party, the Av Beth Din must arrange for the preparation of a written transcript from those electronic records. Although normative Jewish law does not provide for the transcription of court proceedings, it does not prohibit it. The BDA adopted this sensible practice in order to gain the respect of secular legal authorities, but also as a reasonable way of ensuring a more honest and transparent arbitration process. These English-language records serve as an inducement for BDA arbitrators to conduct proceedings with the utmost integrity, and also enable reviewing courts to assess whether BDA arbitrations do in fact comport with the procedural protections provided for in the BDA rules. The very existence and availability of such records help engender judicial confidence in the BDA.
The BDA rules offer a number of other procedural protections that also ensure that the basic requirements of American due process are preserved, so that judges will have the legal authority and personal desire to enforce BDA awards. These include the right of each party to be represented by counsel,36 their right to an adversarial hearing before the tribunal before an award is rendered37 and their right to adequate notice of the time and place of each significant stage in the proceedings.38 Also, the BDA rules provide that all proceedings must be conducted in English, unless all the parties and arbitrators agree to use another language, and that each party has the right to use an interpreter or other aid to remedy a language barrier or other obstacle that may prevent that party from fully understanding the proceedings.39
Although the BDA rules place heavy emphasis on procedural due process, they are entirely opaque as to substantive law. Rule 3(c) states simply that “the Beth Din of America accepts that Jewish law as understood by the Beth Din will provide the rules of decision.” There is no definition of the substance of Jewish law. By insisting that Jewish law as understood by the Beth Din is the law, substantive review becomes impossible, as whatever decision of Jewish law the BDA determines to be correct is by definition the Jewish law as understood by the Beth Din.
There are no clear rules of decision in the BDA that any court can review for consistency and proper application. Consider a simple hypothetical example concerning a commercial dispute between a kosher food provider and a customer about whether Jewish law considers pigs’ feet to be kosher.40 If the BDA were to determine that they were, a secular court could not review that determination to see if it was consistent with Jewish law, as it is “Jewish law as understood by the Beth Din” (emphasis added).41 The decisions of arbitrators are not subject to review by secular courts for errors of law.
This fits well with our understanding of the role of secular courts in reviewing religious arbitration: they are limited to procedural review. American arbitration law pays little attention to notions of substantive due process. Neither the government nor the courts enforce a preconceived notion of the “right” substantive resolution of most any dispute if the parties contractually opt for a different resolution or a process that produces one.42 Rather, the FAA and the myriad state laws that derive from it have a
Tours (1996) Inc. v. Goldstein, No. 5510-05, 2005 WL 2514967 (N.Y. Sup. Ct. Nassau Cty. Oct. 7, 2005) (same).
- 36. See The Rules and Procedures, supra note 14, § 12.
- 37. Id. §§ 16-17.
- 38. Id. § 9.
- 39. Id. § 11.
- 40. There is no view in Jewish law that considers them kosher, as the Bible explicitly states that pork is not kosher. See Leviticus 11:7 (King James).
- 41. See Rules and Procedures, supra note 14, § 3(c).
- 42. See Helfand, supra note 13, at 1256.
strong notion of procedural due process. These statutes provide that there are certain things arbitration panels may and may not do in the course of decision-making: they may not call a hearing at 4:00 am on a federal holiday, they must provide litigants with a reasonable amount of notice, they must conduct hearings in a language that the parties understand, arbitrators may not have a financial interest in the resolution of the case or financial involvement with the parties, and other basic dictates of procedural fair play. Thus, secular courts can and do evaluate whether secular procedural due process was complied with, and whether general notions of fair play were observed, but they cannot decide the substantive rules of Jewish, Islamic, or Christian law. Even if they could, religious arbitration organizations write their rules to prevent that review. Arbitration law mandates that arbitration organizations have rules that protect basic procedural rights (not basic substantive rights), and they do: no other review is needed.
-  Caryn Litt Wolfe, Faith Based Arbitration: Friend or Foe? An Evaluation of ReligiousArbitration Systems and Their Interaction with Secular Courts, 75 Ford. L. Rev. 427, 458(2006).
-  Id. at 458-59.
-  Id. at 459.
-  See Michael A. Helfand, Religious Arbitration and the New Multiculturalism:Negotiating Conflicting Legal Orders, 86 N.Y.U. L. Rev. 1231, 1260-64 (2011).
-  The Rules and Procedures of the Beth Din of America, Beth Din of America, available at https://bethdin.org/forms/ (last visited Nov. 19, 2016).
-  Perhaps the most startling thing one might encounter in a comparative studyof the rules of the BDA, Christian ICC, and Islamic MAT is how similar they are. Withbut a few differences, they essentially address the same set of issues, namely the procedural rights of the parties in arbitration. Indeed, with but a few word changes, therules of any one of them could serve as rules of each of them. Although this mightincline one to think that they had a common author (which assuredly they did not, asI drafted the BDA rules myself many years ago, but did not write the ICC or MAT rules),the truth is that they are simply co-evolutionary identical responses to the pressures ofthe secular FAA (or perhaps the MAT and ICC used the BDA rules?)
-  See The Rules and Procedures, supra note 14, § 2. The BDA offers a standardizedarbitration agreement that ensures compliance with both statutory requirements andJewish law. See Standard Binding Arbitration Agreement, Beth Din of America, available at http://www.bethdin.org/forms-publications.asp (last visited Oct. 2, 2016).
-  See The Rules and Procedures, supra note 14, § 2(i).
-  Id.
-  Id. § 2(b)-(f).
-  Id. § 2(i).
-  Id. § 5.
-  Id. § 6(a).
-  Id. § 6(b).
-  Id. § 8.
-  Id. § 16(a).
-  Id. § 22(a).
-  Id. §§ 26-27.
-  See generally id. §§ 18-19.
-  Id. § 18(a).
-  See id. §§ 18(c), 25(a).
-  Id. § 25(a).
-  Id. § 10(a).
-  Id.
-  See Shulchan Aruch: Choshen Mishpat 13:2-3, 19:2.
-  See Broyde, supra note 2, at 291; see also, e.g., Lang v. Levi, 16 A.3d 980 (Md. Ct.Spec. App. 2011) (citing and deferring heavily to the BDA’s Rules and Procedures); Tal
-  See Michael A. Helfand & Barak Richman, The Challenge of Co-religionist Commerce,64 Duke L. Rev. 769 (2014).
-  See, e.g., JAMS Policy on Employment Arbitration: Minimum Standards of ProceduralFairness, JAMS (July 15, 2009), available at http://www.jamsadr.com/files/Uploads/Documents/JAMSRules/JAMS_Employment_Min_Stds-2009.pdf. Of course, theJAMS policy is only binding when it is incorporated by contract, and the minimal obligations of the arbitrator under state law are considerably lower.
-  For a re-examination of the basic issues of due process and fairness in this context,see Bradley Dillon-Coffman, Comment, Revising the Revision: Procedural Alternatives tothe Arbitration Fairness Act, 57 UCLA L. Rev. 1095 (2010).
-  Although in theory disputants could have a choice-of-forum provision that selectsa state court and a choice-of-law provision that specifies Jewish law, in which case thestate court might very well make a determination of what Jewish law is in the firstinstance, that is much different from a secular court being asked to review someoneelse’s determination of Jewish law. For examples of this first phenomena, see DanielAshburn, Appealing to a Higher Authority? Jewish Law in American Judicial Opinions, 71U. Det. Mercy L. Rev. 295 (1994).
-  By defining, for example, Jewish law not in reference to its historical meaning,but in reference to how this court understands it.