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.
Application to Confirm: Checklist
- Timing of the Application. Consider how much time you have left to apply for confirmation. A good place to start is by reading our recent post on deadlines for motions to confirm U.S.-made awards. Determine when you would like to file the application. You may want to consider allowing your adversary’s three-month period for moving to vacate to expire before you serve and file, which, at least in federal court, means your adversary will be barred from asserting vacatur grounds in response to your motion. (See here).
- State or Federal Court? Determine which federal courts, if any, would have subject matter jurisdiction over your application, and select one having personal jurisdiction over the respondent, as well as venue. (See here.) If no federal courts have subject matter jurisdiction, or if you prefer to proceed in state court, then determine what state courts have subject matter jurisdiction, personal jurisdiction and venue over the application. If a federal court has subject matter jurisdiction, but you proceed in state court, the respondent may, depending on the circumstances, be able to “remove” the case to federal court.
- The Papers to be Served and Filed. The papers on an application to confirm ordinarily consist of: (a) a notice of application; (b) a summons (if the application is not made in a pending lawsuit); (c) the application; (d) a memorandum of law in support; and (e) any supporting affidavits or declarations, principally (but not necessarily exclusively) for putting before the court pertinent documents. Sometimes the application is referred to as a “petition,” rather than an “application,” but the variation in nomenclature does not change the substance or legal effect of the document.
- Pertinent Documents Made part of Application. Documents that should be submitted to the Court ordinarily include copies of: (a) the contract containing the arbitration agreement; (b) the arbitration demand; (c) documents evidencing the selection of the arbitrator (or arbitration panel); (d) documents evidencing the granting of (or consent to) any extensions of the time within which to make the award; and (e) the award (a certified copy if the award falls under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which is implemented by Chapter Two of the Federal Arbitration Act). In some instances it may be necessary to submit a copy of the hearing transcript, if one was made, or some other evidence demonstrating that there is at least a barely colorable basis for the award in the contract or law. In addition, in some cases it may be necessary to include documentary evidence of the issues submitted to arbitration (such as a submission document, issue statements, or the like).
- What the Application and Supporting Papers Should Establish. Your application should show that: (a) the court has subject matter jurisdiction, personal jurisdiction, and venue; (b) the parties agreed to an arbitration agreement falling under the Federal Arbitration Act; (c) the parties implicitly or explicitly agreed that the court could enter judgment on the award (not applicable if the award falls under Chapter Two of the Federal Arbitration Act); (d) the parties selected the arbitrator or arbitration panel pursuant to the parties’ agreement or with their consent; (e) the parties submitted their dispute to the arbitrator or arbitrators (or had a reasonable opportunity to do so); (f) the parties presented their arguments and evidence to the arbitrators; (g) the arbitrators made a final award deciding all the matters submitted to them; and (h) the arbitrator’s award has at least a barely colorable basis in the parties’ contract, the law, or both.
- Service of the Application. Where the application to confirm is not made in an already pending federal action, then it must ordinarily be served in the same manner as a summons and complaint in such an action. That said, Section 9 provides for service in certain cases by U.S. Marshall and one needs to consult the case law to be sure that courts in the relevant district are not following strictly that archaic rule, which was promulgated before the advent of the Federal Rules of Civil Procedure. Service in state court motions to confirm may be subject to different rules.
- Next Steps after Service and Filing of Application. The respondent will have an opportunity to respond to the application, and ordinarily you will have an opportunity to file reply papers. If the other side files a cross-application to vacate, modify, or correct the award, then you will have an opportunity to respond to that motion and the other side an opportunity to reply.
- Decision on Application. The Court is supposed to treat the application like it would a motion in an action, which means that it will ordinarily decide the application (and any cross-application) after reviewing the papers. Sometimes a judge will schedule oral argument. How long it will take to decide the application(s) depends on the judge’s calendar; whether a cross-application to vacate, modify, or correct the award has been made; and other considerations. A decision may be rendered in a few weeks, a few months, several months, a year or so, or at any time in between.
- Will there be an Appeal? If the motion is granted the other side may file an appeal. If the motion is denied in whole or in part, then you may file an appeal.
COVID-19 Considerations
The COVID-19 crisis requires careful consideration of confirmation strategy. While courts across the country have limited their regular operations significantly, in the U.S. District Court for the Southern District of New York, for example, “[c]ases filed electronically will continue to be processed and assigned to judges.” (See March 20, 2020 Memo from Edward Friedland, District Executive, to SDNY BAR, at 3, here.) Applications to confirm arbitration awards can be filed electronically in the Southern District of New York, and most likely in many other districts as well (check your district court’s website).
In New York State, the Governor suspended state-law limitations periods until April 19, 2020, but the Governor’s order will not affect a federal limitations period in a case filed in the federal courts. To date, and to the best of our knowledge, federal statute of limitations periods for civil matters, although the Department of Justice is apparently considering statute-of-limitations-related proposals, which are discussed (along with other COVID-19-related limitations period issues) in this excellent, March 26, 2020 article on the subject. But it remains uncertain whether federal statutes of limitations applicable to Federal Arbitration Act proceedings will be suspended, and if so, for how long. (See, generally, here.)
COVID-19 considerations make it more complicated and difficult to effect service of process. Waiting to the last minute to try to effect service is a very bad strategy,
The COVID-19-related considerations discussed above make it all the more important for persons who want to confirm their arbitration awards to take steps now to protect their interests, and develop a plan to ensure that they can timely file properly supported applications.
About the Author
Philip J. Loree Jr. is a partner and founding member of Loree & Loree. He has nearly 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related litigation. He is a former partner of the litigation departments of the New York City firms of Rosenman & Colin LLP (now known as Katten Munchin Rosenman LLP ) and Cadwalader, Wickersham & Taft LLP.
Loree & Loree focuses its practice on solving arbitration problems for small businesses and professional practices, usually by representing them in arbitration proceedings and in arbitration-related litigation.
It represents private and government-owned-or-controlled business organizations, and persons acting in their individual or representative capacities, and often serves as co-counsel, local counsel or legal adviser to other domestic and international law firms requiring assistance or support.
Loree & Loree was recently selected by Expertise.com out of a group of 1,763 persons or firms reviewed as one of Expertise.com’s top 18 “Arbitrators & Mediators” in New York City for 2019, and now for 2020. (See here and here.)
You can contact Phil Loree Jr. at (516) 941-6094 or at PJL1@LoreeLawFirm.com.
ATTORNEY ADVERTISING NOTICE: Prior results do not guarantee a similar outcome.
Photo Acknowledgment
The photo featured in this post was licensed from Yay Images and is subject to copyright protection under applicable law.
Tags: Agreement, Award, Barely Colorable, Chapter 1, Chapter 2, Chapter One, Chapter Two, Coronavirus, COVID-19, Federal Arbitration Act, Petition, Section 9
