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Jury Trial | Application to Compel Arbitration | Businessperson’s Federal Arbitration Act FAQ Guide | Nuts and Bolts of Pre-Award Federal Arbitration Act Practice under Sections 2, 3, and 4 (Part IV)

April 28th, 2020 Application to Compel Arbitration, Arbitrability | Existence of Arbitration Agreement, Arbitration Law, Arbitration Practice and Procedure, Challenging Arbitration Agreements, Existence of Arbitration Agreement, FAA Chapter 1, Gateway Disputes, Gateway Questions, Nuts & Bolts, Nuts & Bolts: Arbitration, Pre-Award Federal Arbitration Act Litigation 1 Comment » By Philip J. Loree Jr.
Trial Application to Compel Arbitration

This segment of the Businessperson’s Federal Arbitration Act FAQ Guide discusses the provisions of Section 4 relating to the jury trial of arbitrability issues.

The last instalment discussed the following FAQs related to Section 4 applications to compel arbitration:

  1. How does a Federal Court “Hear” an Application to Compel Arbitration? 
  2. In what Federal Court may an Application to Compel Arbitration be Filed?

This segment addresses the FAQ “What Happens when a Court Determines there is a Genuine Issue of Material Fact Concerning the Making of the Arbitration Agreement or the Failure, Neglect, or Refusal to Perform that Agreement?”  

What Happens when a Court Determines there is a Genuine Issue of Material Fact Concerning the Making of the Arbitration Agreement or the Failure, Neglect, or Refusal to Perform that Agreement?

In the last post we explained that district courts adjudicate applications to compel by applying a standard akin to that which applies to summary judgment motions. Courts therefore ascertain whether there are any genuine issues of material fact in dispute. If the material facts are not in dispute, then the Court determines whether the motion should be granted or denied by applying the law to the undisputed facts.

If the material facts are in dispute, then “the court shall proceed summarily to [a] trial. . . .” 9 U.S.C. § 4.

Bench versus Jury Trial

There are two kinds of trial that may take place: a bench trial or a jury trial. In a bench trial the court determines not only questions of law, including the admissibility of evidence, but also sits as a fact finder, determining questions of fact based on witness testimony and documentary evidence, making decisions concerning the credibility of the witnesses and the weight of the evidence, resolving conflicts in the evidence, and applying the law to the facts. After the trial is concluded the judge will ordinarily make written findings of fact and conclusions of law and render a judgment.

The other kind of trial is a jury trial, for which a jury is empaneled. The judge presides over the trial and determines all questions of law (including admissibility of evidence), including the questions about the admissibility of evidence. The jury determines what the facts are based on the evidence, applies the law to the facts according to the jury instructions provided by the judge, and reaches a verdict for either applicant or the respondent.

What we refer to as “Section 4(d)” explains whether there will be a jury or bench trial. “[I]f the matter in dispute is within admiralty jurisdiction,” that is, if the matter claimed to be arbitrable would fall under the court’s admiralty jurisdiction, then the trial would be a bench trial. If a claim falls under both the admiralty jurisdiction and another basis for subject matter jurisdiction, and a party making an application wants a bench trial, then it might, under Fed. R. Civ. P. 9(h), designate the claim as within the admiralty or maritime jurisdiction. See Fed. R. Civ. P. 9(h)(1), 38(e).

In all other cases, there is a trial by jury provided that the “party alleged to be in default” timely demands one. A jury demand is timely if the party alleged to be in default serves and files it “on or before the return day of the notice of application[.]” 9 U.S.C. § 4. If a timely demand is made, and the court determines that application presents one or more genuine issues of material fact, then “the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose.” 9 U.S.C. § 4.

Federal Rules of Civil Procedure 38-53 govern trials, including jury trials, and those rules may come into play when a party makes a Section 4 application to compel arbitration. Fed. R. Civ. P. 38(c), for example, permits parties demanding a jury to “specify the issues that it wishes to have tried by a jury,” if it so chooses. “[A]ny other party,” the Rule states, “may—within 14 days. . . or within a shorter time ordered by the court—serve a demand for a jury trial on any other or all factual issues triable by jury.” Fed. R. Civ. P. 38(c). Fed. R. Civ. P. 38(d) further provides that “[a] proper demand [for a jury trial] may be withdrawn only if the parties consent” by stipulation in writing or on the record. See Fed. R. Civ. P. 38(d), 39(a)(1).

Disposition upon Jury Trial Verdict

What we refer to “Section 4(e)” explains what happens once the jury reaches its verdict. The court dismisses the proceeding “[i]f the jury find that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder. . . .” 9 U.S.C. § 4. The court “summarily direct[s] the parties to proceed with the arbitration in accordance with the terms” of the parties’ agreement “if the jury find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder. . . .”

Please note. . .

This guide, including the instalments that will follow in later posts, and prior instalments, does not purport to be a comprehensive recitation of the rules and principles of arbitration law pertinent or potentially pertinent to the issues discussed. It is designed simply to give clients, prospective clients, and other readers general information that will help educate them about the legal challenges they may face and how engaging a skilled, trustworthy, and experienced arbitration attorney can help them confront those challenges more effectively.

This guide is not intended to be legal advice and it should not be relied upon as such. Nor is it a “do-it-yourself” guide for persons who represent themselves pro se, whether they are forced to do so by financial circumstances or whether they voluntarily elect to do so.

If you want or require arbitration-related legal advice, or representation by an attorney in an arbitration or in litigation about arbitration, then you should request legal advice from an experienced and skilled attorney or law firm with a solid background in arbitration law.

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 Cadwalader, Wickersham & Taft LLP and Rosenman & Colin LLP (now known as Katten Munchin Rosenman LLP).

Loree & Loree 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 out of a group of 1,763 persons or firms reviewed as one of’s top 18 “Arbitrators & Mediators” in New York City for 2019, and now for 2020. (See here and here.)

If you have any questions about arbitration, arbitration-law, arbitration-related litigation, this article, or any other legal-related matter, you can contact Phil Loree Jr. at (516) 941-6094 or at

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.

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One Response to “Jury Trial | Application to Compel Arbitration | Businessperson’s Federal Arbitration Act FAQ Guide | Nuts and Bolts of Pre-Award Federal Arbitration Act Practice under Sections 2, 3, and 4 (Part IV)”

  1. […] been resolved, for example, by a motion to compel arbitration. (See, e.g., here, here, here, and here.) But if the arbitration agreement is self-executing, and the other party does not participate in […]