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Archive for March, 2020

Application to Confirm U.S.-Made Arbitration Award | A Checklist

March 27th, 2020 Awards, Confirmation of Awards, Consent to Confirmation, COVID-19 Considerations, FAA Chapter 1, FAA Chapter 2, Federal Arbitration Act Section 9, Petition or Application to Confirm Award No Comments »
Application to Confirm

Our most recent post discussed time the limits applicable to an application to confirm a U.S.-made arbitration award. It explained how awards falling under Chapter One of the Federal Arbitration Act are subject to a one-year limitation period while awards falling under Chapter Two are subject to a three-year period.

Mindful of how many of us would, if possible, like to spend at least a few minutes thinking of something other than the currently raging coronavirus pandemic, we’ve prepared a checklist of things one needs to consider and address before serving and filing a motion to confirm a U.S.-made award falling under Chapter One or Chapter Two of the Federal Arbitration Act. But I’m afraid the respite will be brief indeed, for it is important to consider the effect of the COVID-19 pandemic on the preparation, service, and filing of an application to confirm. This post accordingly concludes with a brief discussion about how those considerations bear on confirmation strategy.

This checklist is not legal advice, a substitute for legal advice, or a “do-it-yourself” guide, and should not be relied upon as such. It simply provides a broad-perspective outline of what is involved in planning for, preparing, and serving and filing an application to confirm.

If you are going to file an application to confirm an award, then you should engage an attorney with arbitration-law experience to represent you or your business. That person should, for a reasonable fee, be able to prepare and file the application and otherwise represent your interests in the process.

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How Much Time do I have to Serve and File a Motion to Confirm a U.S.-Made Arbitration Award under the Federal Arbitration Act?

March 24th, 2020 Applicability of Federal Arbitration Act, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration Law, Arbitration Practice and Procedure, Awards, Confirmation of Awards, FAA Chapter 1, FAA Chapter 2, Federal Arbitration Act 202, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 1, Federal Arbitration Act Section 2, Federal Arbitration Act Section 207, Federal Arbitration Act Section 9, New York Convention 1 Comment »
Statute of Limitations, Confirm

Chapter One of the Federal Arbitration Act authorizes courts to confirm arbitration awards falling within the scope of the Act, if the parties implicitly or expressly agree that a judgment may be entered on the award.

To confirm an award is to reduce it to a judgment of the court, which can be enforced like any other judgment. For some detailed information on confirming arbitration awards, see here.

But how much time do you or your business have to confirm an arbitration award that is made in the United States? The answer depends on whether your arbitration award falls under Chapter One of the Federal Arbitration Act or also under Chapter Two of the Federal Arbitration Act, which implements the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”). Because some arbitration awards made in the United States are completely domestic, while others are not, and different limitation periods apply to applications to confirm them.

If the award falls under Chapter One of the Federal Arbitration Act, but not Chapter Two, then your application to confirm must be made within one-year of the date on which the “award was made.” 9 U.S.C. § 9. But if your domestic award falls under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, then your application to confirm must be made “[w]ithin three years after. . . [the]. . . award. . . is made.” 9 U.S.C. § 207.

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Provider Rules: Should I Agree to Arbitrate under Them?

March 23rd, 2020 American Arbitration Association, Arbitrability, Arbitrability | Clear and Unmistakable Rule, Arbitrability | Existence of Arbitration Agreement, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration Practice and Procedure, Arbitration Provider Rules, Arbitration Providers, Arbitration Risks, Arbitrator Selection and Qualification Provisions, Authority of Arbitrators, Businessperson's FAQ Guide to the Federal Arbitration Act, Clear and Unmistakable Rule, Delegation Agreements, Drafting Arbitration Agreements, Evident Partiality, Existence of Arbitration Agreement, FAA Chapter 1, First Options Reverse Presumption of Arbitrability, Gateway Disputes, Gateway Questions, Practice and Procedure 1 Comment »
provider rules

Should your business agree to arbitrate under arbitration provider rules? Well, that depends.

Ideally, you should review those rules to see what they say, and discuss them with a knowledgeable and experienced arbitration attorney, or perhaps with another businessperson who has meaningful experience arbitrating under them. If, after doing your due diligence, you’re satisfied with the rules, understand how they might materially affect your arbitration experience, and are prepared to accept the consequences, then you may want to agree. If not, then you need to consider other options.

Granted, most of us do not bother to review arbitration rules before agreeing to arbitrate, or even to consult briefly with someone who is familiar with how they work in practice. And that can lead to some surprises, some of which may be unpleasant.

Here’s a nonexclusive list of a few things to keep in mind when considering whether to agree to arbitrate under arbitration provider rules:

  1. Agreeing to arbitrate under arbitration rules generally makes those rules part of your agreement, which means they are binding on you like any other part of your arbitration agreement;
  2. Arbitration provider rules generally provide that “arbitrability” issues—i.e., issues about the validity, enforceability, or scope of the arbitration agreement—must be decided by the arbitrator, not the court;
  3. They will govern not only the procedures to be used in the arbitration, but key substantive issues, such as arbitrator selection, arbitrator qualifications, and the number of arbitrators;
  4. They may empower the arbitration provider to resolve, at least in the first instance, questions about arbitrator impartiality, questions that one would otherwise reasonably expect were within the exclusive province of a court;
  5. They may determine whether your arbitration is placed on an expedited or complex-case track; and
  6. They may contain information about arbitration provider fees, which may be steeper than you anticipated.

And this list is by no means comprehensive.

Do any of these things really matter in business arbitration? They do, and to take but a single example, let’s look at how agreeing to provider rules may result in your business forefeiting its right to have a court decide disputes about the validity, enforceability, or scope of the arbitration agreement.

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