Introduction
When a party is on the wrong end of an arbitration award that he, she or it thinks is fundamentally unfair, tainted by impropriety, or disconnected from the agreement the arbitrator was supposed to interpret and apply, the first question that comes to mind is whether there might be some form of recourse available. In court, the usual avenue of relief from an adverse judgment or order is an appeal.
Can a losing party to an arbitration award governed by the Federal Arbitration Act (the “FAA”) appeal it in court? Since private arbitration is an alternative to public, government-sponsored court litigation, since the court system plays an important role in enforcing arbitration agreements, since both arbitration and court litigation share at least some of the same attributes and since in the U.S. procedural due process and the primacy of the rule of law are as dear to us as baseball and apple pie, it is natural to assume that one should be able to appeal an adverse arbitration award.
But one cannot—in any meaningful sense of the word—“appeal” an arbitration award to a court. In court litigation an appeal involves judicial review by an appellate court under which a panel of judges reviews trial-court rulings on questions of law independently—that is, as if the appellate court were deciding the question for itself in the first instance. The appellate court reviews the trial court’s findings of fact on a “clearly erroneous” or “clear error” standard of review, that is, paying a certain degree of deference to the finder of fact (the jury or trial judge). While appellate review thus does not involve a retrial on the merits, it is broad and searching, particularly where outcomes turn solely on questions of law.
The FAA does not authorize courts to review arbitration awards under an appellate standard of review, even if the parties consent to a court applying such a standard. Parties can agree before or after a dispute arises to an arbitration procedure that empowers another arbitrator or panel of arbitrators to review an award under an appellate or some other standard of review, but arbitration awards are subject to very limited and deferential review by courts and then only on a few narrow grounds.
The FAA Award-Enforcement Process
The FAA award enforcement process permits either party to make an application to vacate, modify or correct an award, or an application to “confirm” it, that is, enter judgment on it. Since the deadline for applying to vacate, modify or correct an award is considerably shorter than that for confirming an award, in many cases, parties who are seeking relief from the award make the initial application. If a putative challenging party does not timely seek relief, and the other party seeks confirmation after the expiration of the deadline for making an application to vacate, modify or correct the award, then the challenging party is time-barred from asserting grounds for vacatur or modification, even simply as affirmative defenses to confirmation. (See, e.g., L. Reins. & Arb. Law Forum post here.)
Let’s assume a party makes a timely motion to vacate an award. What will likely then happen is the other party will cross-move to confirm the award. The burden on the party seeking confirmation is pretty modest. Generally the party moving to confirm will need to show that the parties: (a) agreed to arbitrate; (b) consented to entry of judgment on the award; (c) appointed an arbitrator or panel of arbitrators; and (d) submitted the dispute to the arbitrators, who issued the award. The award is presumed valid and the court does not review its outcome or substance.
Once the modest prerequisites for confirmation have been established by a properly supported petition or motion to confirm an award, then the court “must grant” confirmation “unless the award is vacated, modified or corrected” under FAA Sections 10 or 11. 9 U.S.C. § 9. Thus, apart from those relatively rare cases where a party can show that the parties never agreed to arbitrate at all (and that the challenging party did not waive that defense), or perhaps never even impliedly consented to entry of judgment on the award, the only grounds on which the losing party can oppose confirmation are those set forth in Section 10 and 11.
The only exception might be if the award interprets the contract in a way that causes it to violate a well-defined and explicit public policy, or if the remedy the arbitrator awards violates the criminal law or requires one of the parties to do so. For example, one would not expect a court to enter judgment on an award that purported to authorize the prevailing party to inflict bodily harm on the losing party or vice-versa. That principle is simply an application of the contract-law rule that courts will not enforce contracts that violate public policy. See, generally, W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983); United Food & Commercial Workers Int’l Union v. King Soopers, 743 F.3d 1310, 1315 (10th Cir. 2014).
Grounds for Modifying or Correcting an Award under FAA Section 11
For the most part a motion to modify an award is limited to correcting mathematical, typographical or other technical errors appearing on the face of the award, or severing from the award rulings on issues not submitted to the arbitrators (i.e., issues the parties did not ask the arbitrators to decide). See 9 U.S.C. § 11(a) (“evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award”); 9 U.S.C. § 11(c) (“award is imperfect in matter of form not affecting the merits of the controversy”); 9 U.S.C. § 11(b) (“arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted”). The court’s “order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties.” 9 U.S.C. § 11. If a party only seeks modification or correction of an award, even if the challenging party prevails, the end result of the proceeding will be the court’s entry of a judgment on the modified or corrected award.
Grounds for Vacating an Award under FAA Section 10
A motion to vacate an award under Section 10 of the FAA may be granted only where:
- “the award was procured by corruption, fraud, or undue means” (9 U.S.C. § 10(a)(1));
- “there was evident partiality or corruption in” any of the arbitrators (9 U.S.C. § 10(a)(2));
- “the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced” (9 U.S.C. § 10(a)(3)); or
- “the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made” (9 U.S.C. § 10(a)(4)).
9 U.S.C. § 10(a)(1)-(4).
The U.S. Supreme Court has held that these four, statutory grounds are exclusive in FAA-governed cases, and cannot be expanded by party agreement. See Hall Street Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 576, 578 (2008).
Although none of the four grounds explicitly authorizes review of an award’s outcome, the Supreme Court has held that arbitrators “exceed[] their powers” under Section 10(a)(4) if they “stray[] from interpretation and application of the agreement” and substitute for the parties’ agreement their “own brand of . . . justice.” See Stolt-Nielsen, S.A. v. AnimalFeeds, Int’l Corp., 559 U.S. 662, 668 (2010) (quotation and citations omitted). Under this standard—sometimes referred to as the “essence of the agreement” or manifest disregard of the agreement standard—the court may review an arbitrator’s decision on issues that the parties agreed to arbitrate to determine whether there is some arguable basis on which to conclude that the arbitrator construed or applied the parties’ agreement. See, e.g., Stolt-Nielsen, 559 U.S. at 668-72; Oxford Health Plans LLC, v. Sutter, 133 S. Ct. 2064, 2068-71 (2013). If not, the award may be vacated.
The standard is narrow and meeting it presents a “high hurdle” that a challenger cannot overcome simply by showing that the arbitrators “committed an error —or even a serious error.” Id. The sole question for the court “is not whether the arbitrator or arbitrators erred in interpreting the contract; it is not whether they clearly erred in interpreting the contract; it is not whether they grossly erred in interpreting the contract; it is whether they interpreted the contract.” See Hill v. Norfolk and Western Ry. Co., 814 F. 2d 1192, 1194-95 (7th Cir. 1987) (Posner, J). If the arbitrator is even “arguably” interpreting the contract, then the arbitrator’s award cannot be vacated. See Oxford, 133 S. Ct. at 2068 (citation and quotation omitted).
Some (but not all) circuits also hold that courts may—under Section 10(a)(4), or “as a judicial gloss” on all the Section10(a) grounds—vacate awards for “manifest disregard of the law,” a standard that overlaps to some extent with the “essence of the agreement” or “manifest disregard of the agreement” standard. See Stolt-Nielsen, 559 U.S. at 668 n.3; Oxford, 133 S. Ct. at 2068-71 (2013); see, e.g., Schwartz v. Merrill Lynch & Co., Inc., 665 F. 3d 444, 451-52 (2d Cir. 2011) (manifest disregard of the law is a judicial gloss on Section 10(a)); Comedy Club, Inc. v. Improv West Assoc., 553 F.3d 1277, 1290 (9th Cir. 2009) (manifest disregard of the law falls under Section 10(a)(4)). Vacatur under that standard may be appropriate if arbitrators disregard or ignore a well-defined, explicit, clearly applicable and outcome determinative rule of law that the challenger argued to the arbitrators. See, e.g., Schwartz, 665 F.3d at 451-52. Manifest disregard of the law does not authorize courts to vacate awards for errors of law—even serious ones—or “a failure on the part of the arbitrators to understand or apply the law.” See, e.g., Lagstein v. Certain Underwriters at Lloyd’s, 607 F.3d 634, 641 (9th Cir. 2010) (quotation and citation omitted).
The two “outcome review” standards discussed above authorize vacatur only when there is not even a barely colorable basis in the contract or controlling law for the award. They do not even vaguely resemble the appellate review standards that are ordinarily applied to trial court decisions on the merits.
The limited scope of the challenge is not the only obstacle one seeking relief from an award must overcome. Courts tend to be skeptical of challenges, even ones having a solid basis, and generally one must establish that the only legitimate inference that can be drawn from the law and undisputed facts is that vacatur is warranted. Even where there are factual disputes, courts usually will not order discovery or evidentiary hearings absent “clear evidence of impropriety.” See, generally, Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 701, 702 (2d Cir. 1978).
Is there Anything I can do to Help Protect My Rights?
If you believe that an arbitrator’s award: (a) exceeds the authority the parties agreed to delegate to the arbitrators or the authority they actually delegated to them; (b) is fundamentally at odds with the parties’ agreement or clearly applicable law argued to the arbitrators; (c) is tainted by serious impropriety; (d) is the product of fundamental, prejudicial procedural unfairness; or (e) otherwise seems to suffer from some fundamental defect, then you should consult with an attorney who regularly practices arbitration law. That attorney should be able to determine relatively quickly whether or not there appears to be a basis for a challenge and if so, roughly what the chances of success are. And if there is a basis for proceeding, and one decides to proceed, then the attorney should be able to handle the matter in the way it is supposed to be handled.
The FAA and state statutes (where applicable) authorize vacatur as a kind of modest fail-safe mechanism to address relatively rare cases where an arbitration award is the product of a serious breach of an agreement to arbitrate. When vacatur is granted in an appropriate case, that doesn’t mean an award challenger is a disgruntled—but lucky—party who escaped the consequences of its agreement to arbitrate. It means the challenger was denied the benefit of the arbitration bargain envisioned by the FAA and that the court upheld that bargain.
But remember: Vacatur is a remedy of last resort. The best way to protect your interests is to make fully-informed decisions about whether to agree to arbitrate, taking into account arbitration’s risks and potential benefits. If you decide to opt for arbitration, it should be on terms designed to meet your dispute resolution interests and goals. Arbitration is indeed a matter of consent, not coercion, but that principle is helpful only when consent is fully and meaningfully informed.
If, after having agreed to arbitrate, a dispute arises that is submitted to arbitration, you need to go forward fully informed and represented by at least one counsel who knows the ins and outs of arbitration law, arbitration procedure and arbitration in general and has the requisite experience to protect your legitimate interests. Arbitration and litigation are too very different animals. Don’t end up being someone who consults with experienced arbitration-law counsel for the first time after receiving a highly questionable arbitration award, for far too often those persons learn, after it is too late to do anything about it, that matters should have been handled differently during the proceedings, that agreeing to arbitrate at all in the circumstances was inadvisable, that the terms on which they agreed to arbitrate were not what they should have been or some combination or all of the above.
As is so with many other things in life, an ounce of prevention is worth a pound of cure. It is tempting to think that, because arbitration is a private, alternative form of dispute resolution, courts will step in if necessary to ensure that “justice” is done. But as we’ve seen, that is so only in unusual cases. And when you think about it, that should come as no surprise: arbitration is a matter of contract, and courts are at least as loathe to save parties from the consequences of their arbitration agreements as they are to save them from the consequences of any of their other agreements. The “I didn’t know” or “my counsel didn’t know” excuse almost always falls on deaf ears.
If you want the kind of “justice” the court system metes out, then do not waive your rights to receive it by entering into an arbitration agreement. Remember that the FAA presents a bargain that can sometimes be Faustian: if you’re willing to give up the right to appeal, and most of court litigation’s niceties, and will be satisfied with dispute resolution that usually promises at best, rough justice, then you may (or may not) receive the benefit of a relatively speedy, efficient, informal and confidential form of dispute resolution, which, depending on the particular dispute, may or may not increase your odds of prevailing or losing on the merits. That bargain works well for some but poorly for others, and whether you’re one of the some or the others generally turns on the circumstances surrounding the transaction or legal relationship, the types of disputes that are likely to arise out of it, who your adversary is, who the arbitrators are likely to be and a host of other things.
But if you do decide to consider agreeing to arbitrate disputes, do yourself a favor and consult with a lawyer experienced with and knowledgeable about arbitration and arbitration law. If a dispute arises that requires arbitration, consult with that lawyer again. That kind of modest investment made early on, before any problems arise, may decrease the likelihood that any actually will, and if they do, may increase the likelihood that you’ll have a meaningful basis on which to seek redress.
Tags: Andros Maritima S.A. v. Marc Rich & Co, Appeals, Arbitration Lawyer, Arbitrator Misbehavior, Arbitrator Misconduct, Awards, Bias, Can I Appeal an Arbitration Award, Comedy Club Inc. v. Improv West Assoc, Corruption, Definite Award, Essence of Agreement, Evident Partiality, Exceeding Powers, FAA, FAA Section 10, FAA Section 11, Federal Arbitration Act, Final Award, Fraud, Grounds for Modification, Grounds for Vacatur, Hall Street Assoc. v. Mattel Inc., Hill v. Norfolk & Western Ry., Informed Decision Making About Arbitration, Judicial Review, King Soopers, Lagstein v. Underwriters, Modification of Awards, Neutrality, Oxford Health Plans LLC v. Sutter, Procedural Misconduct, Representation at Arbitration Proceedings, Schwartz v. Merrill Lynch, SCOTUS, Standard of Review, Stolt Nielsen S.A. v. Animalfeeds Int'l Corp., U.S. Supreme Court, Undue Means, Vacate, W.R. Grace & Co. v. Rubber Workers
