Posts Tagged ‘Agreement to Arbitrate’

No Agreement to Arbitrate in a Case Governed by New York CPLR Article 75?

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Introduction: Same Hypothetical but New York Article 75 Changes the Timing Analysis

Article 75 - New York state arbitration law

New York’s arbitration statute is New York Civ. Prac. L. & R. (“CPLR”) Article 75. It is essentially New York’s version of the Federal Arbitration Act (“FAA”). The FAA was modeled on the statutory  predecessor of Article 75.  That said, Article 75 and the FAA differ in some material respects.

Our recent Arbitration Law Forum article (the “FAA No Agreement Article”) addressed whether, under the FAA, a business that never agreed to arbitrate may oppose confirmation of an adverse default award even though it did not serve within FAA Section 12’s three-month limitation period a timely motion to vacate, modify, or correct the award.

How would Article 75 resolve the question posed in the FAA No Agreement Article? As we’ll see, the ultimate outcome under both statutes is similar but there are some materially different timing and procedural rules in play. This post discusses how and why that is so.

The Article 75 Hypothetical

Suppose the applicable arbitration law is not the FAA, but New York’s Continue Reading »

No Agreement to Arbitrate? Defending Against an Award Without a Timely FAA Motion to Vacate

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No Agreement: A Businessperson’s Guide to a Narrow but Important Defense to Award Confirmation

no agreementWhat if your adversary obtains a default award against your business but your business never agreed to arbitrate the dispute?

Suppose your business receives an arbitration demand, but it never signed the alleged arbitration agreement, never otherwise agreed to arbitrate, and is not bound to an arbitration agreement under generally applicable state-law contract principles.  Your business promptly objects and refuses to appear in response to the arbitration demand and does not participate in the demanded arbitration.

Undaunted, the claimant proceeds, obtains a default award, waits until the Federal Arbitration Act (the “FAA”)’s three-month period for moving to vacate has expired, and then asks a court to confirm the award. Assume that if there were a binding arbitration agreement, then it would be governed exclusively by the FAA, not state arbitration law.

Must the Court confirm the award simply because your business failed to serve and file a Section 10(a) motion to vacate within FAA Section 12’s three-month limitation period for service of a motion to vacate under Section 10, or modify or correct the award under Section 11? Continue Reading »

Ineffective Objections and Untimely Filings Lead to FAA Forfeiture: Sivanesan v. YBF, LLC, ___ A.D. 3d ___, 2024 N.Y. Slip Op. 4327 (2d Dep’t 2024)

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Objections Must be Timely and Effective in Federal Arbitration Act Litigation, Including Litigation Relating to Consulting AgreementsA good chunk of FAA practice and procedure —including FAA practice and procedure in state court—involves knowing when, how, and why to make timely and effective objections and filings in arbitration enforcement litigation.  Sivanesan v. YBF, LLC, ___ A.D. 3d ___, 2024 N.Y. Slip Op. 4327 (2d Dep’t 2024), which New York’s Appellate Division, Second Department, decided on August 28, 2024, illustrates this point well.

Appellants were not signatories to the arbitration agreement, did not agree to arbitrate any matters, and did not clearly and unmistakably agree to arbitrate questions of arbitrability. But the Court found that they participated in the arbitration without lodging adequate objections to the arbitrator’s jurisdiction and did not timely file in the confirmation litigation their petition to vacate the awards at issue. Accordingly, the Appellants were—by their participation in the arbitration without effective objections to the arbitrator’s jurisdiction—deemed to have impliedly consented to arbitrate all issues before the arbitrator, including whether they were bound by the contract and arbitration agreement as successors-in-interest. Not a happy place to be.

Background

The transactions pertinent to Sivanesan began in 2008 when YBF, LLC (“YBF”) sold to Cosmetics Specialties, East LLC (“CSE”) an exclusive license to Continue Reading »

Vacating, Modifying, and Correcting Awards | Introduction | Businessperson’s Federal Arbitration Act FAQ Guide

August 3rd, 2020 Arbitration Law, Arbitration Practice and Procedure, Awards, Businessperson's FAQ Guide to the Federal Arbitration Act, Challenging Arbitration Awards, FAA Chapter 1, Federal Arbitration Act Section 10, Federal Arbitration Act Section 11, Federal Arbitration Act Section 9, Grounds for Modifying or Correcting Award, Grounds for Vacatur, Imperfectly Executed Award or Powers, Modify or Correct Award, Nuts & Bolts, Nuts & Bolts: Arbitration, Practice and Procedure, Section 9, Small Business B-2-B Arbitration, Time Limit for Vacating, Modifying, or Correcting Award, Vacate Award | 10(a)(4), Vacate Award | Arbitrability, Vacate Award | Attorney Fees, Vacate Award | Evident Partiality, Vacate Award | Exceeding Powers, Vacate Award | Excess of Powers, Vacate Award | Existence of Arbitration Agreement, Vacate Award | Manifest Disregard of the Law, Vacatur 2 Comments »

Introduction

Challenge Vacating Modifying CorrectingWe’ve seen how the Federal Arbitration Act authorizes confirmation and enforcement of various domestic and foreign arbitration awards falling within its scope. (See here, here, here, and here.) Let’s look at what the Federal Arbitration Act has to say about vacating, modifying, or correcting awards.

The Federal Arbitration Act also provides some limited remedies for challenging arbitration awards where a party can show certain kinds of unusual and material violations of an arbitration agreement by an arbitrator or an opposing party, or an obvious mathematical, typographical, or technical error that appears on the face of the award. These remedies are orders: (a) modifying or correcting the award under Section 11 of the Federal Arbitration Act; or (b) vacating the award in whole or in part under Section 10 of the Federal Arbitration Act.

Vacating an Award under Section 10 of the Federal Arbitration Act

An arbitration award is effectively a contract resulting from the performance of one or more other contracts, including the pre-dispute agreement to arbitrate and the post-dispute submission to arbitration.  Two parties agree to appoint arbitrators, submit their dispute to arbitration and abide by the award. The parties ordinarily consent to entry of judgment on the award, and it can be confirmed under Sections 9 or 207 of the Federal Arbitration Act (or a state law equivalent when the Federal Arbitration Act doesn’t apply).  Alternatively, it may be enforced through the plenary and summary procedures that apply to ordinary contracts (subject to any special rules governing arbitration awards).  

So what happens when things go awry—or at least seem to have gone awry—and the arbitration award is or appears to be fundamentally unfair, divorced from the contract or the result of fraud, bias, or some form of prejudicial misconduct on the part of the arbitrators?  Section 10 of the Federal Arbitration Act provides a modest safety net in the form of a motion or petition to vacate the award. (State arbitration statutes and law applicable in actions to enforce arbitration awards generally provide similar recourse, but our focus here is on the Federal Arbitration Act.)

Continue Reading »