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SmartSky: Fourth Circuit Says No Jurisdictional Anchor Post Badgerow

Introduction

This post discusses the U.S. Court of Appeals for the Fourth Circuit’s recent decision in SmartSky Networks, LLC v. DAG Wireless, Ltd., ___ F.4^th ___, No. 22-1253, slip op. (4^th Cir. Feb. 13, 2024). SmartSky held that, under Badgerow v. Walters, 596 U.S. 1, 142 S. Ct. 1310 (2022), if a party makes a motion to confirm, vacate, or modify an award in an action over which the Court has federal-question subject matter jurisdiction, then it must nevertheless demonstrate that the Court would have had subject matter jurisdiction had the motion been brought as a standalone petition to confirm, vacate, or modify. That is so even if the Court has under Federal Arbitration Act (“FAA”) Section 3 stayed the action pending arbitration.

Suppose:

A and B, both New York citizens, entered a contract containing an arbitration agreement;
A and B become embroiled in a dispute that is governed by a federal statute;
A sues B in federal court, properly invoking the federal court’s federal- question jurisdiction, 28 U.S.C. § 1331;
B demands arbitration, and moves to compel arbitration under Section 4 and for a stay of litigation pending arbitration under Section 3;
A unsuccessfully opposes the motion, the Court compels arbitration and grants a Section 3 stay of litigation pending arbitration.
B ultimately obtains a $100,000 (exclusive of costs and interest) award in its favor and moves in the stayed action to confirm the award.
A opposes the motion on the ground the court has no subject matter jurisdiction to confirm the award.

SmartSky would require the Court to dismiss A’s motion for lack of subject matter jurisdiction, even though A made the motion in an action over which the Court had subject matter jurisdiction, the Court had compelled the arbitration that resulted in the award, and the Court had stayed the action pending arbitration under Section 3. There is no federal-question jurisdiction, and because both A and B are citizens of New York, no diversity jurisdiction.

According to SmartSky, the dismissal of the motion to confirm would be required by Badgerow.

Badgerow

In Badgerow the Supreme Court of the United States (“SCOTUS”) held that a basis for subject-matter jurisdiction—independent from the FAA itself—must appear on the face of a standalone, petition to confirm or vacate an arbitration award and that independent basis cannot be established by “looking through” to the underlying arbitration proceeding that resulted in the award. See Badgerow, 142 S. Ct. at 1314, 1320.

Simply petitioning a court for relief under Sections 9, 10, 0r 11 of the Federal Arbitration Act (“FAA”) raises no federal question and does not confer on a court federal-question subject-matter jurisdiction, as strange as that might sound to the uninitiated. In the absence of a federal question appearing on the face of the freestanding petition—such as a claim for relief falling under Chapter Two of the FAA, which implements the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), see 9 U.S.C. §§ 202, 203; 28 U.S.C. § 1331, or one falling under Chapter Three, which implements or Inter-American Convention on International Commercial Arbitration (the “Inter-American Convention”), see 9 U.S.C. §§ 301, et seq.; 28 U.S.C. § 1331—the only possible basis for federal subject-matter jurisdiction over such a standalone petition is diversity of citizenship. See 28 U.S.C. § 1332(a).

If there is no diversity jurisdiction, and if the action does not concern an award falling under the New York or Inter-American Conventions, then the substantive provisions of Chapter One still apply but enforcement must be sought in state court. See Vaden v. Discover Bank, 556 U.S. 49, 59 (2009) (“Given the substantive supremacy of the FAA, but the Act’s nonjurisdictional cast, state courts have a prominent role to play as enforcers of agreements to arbitrate”).

A “Jurisdictional Anchor” Post-Badgerow?

The author explained in a recent Arbitration Law Forum post—Philip J. Loree Jr., Weighing the “Jurisdictional Anchor”: Post-Badgerow Second Circuit Subject Matter Jurisdiction Requirements for Applications to Confirm, Modify, or Vacate Arbitration Awards, Arbitration Law Forum (Nov. 13, 2023) (the “Jurisdictional Anchor Post”)— that Badgerow leaves unanswered an important question. It arises when—in a preexisting action over which the Court already has federal-question subject matter jurisdiction—a Court grants a motion made under Sections 4 and 3 of the FAA to compel arbitration and stay litigation, and a party subsequently moves in the same, stayed action to confirm, vacate, or modify an award resulting from the compelled arbitration. Does the Court in the stayed action have continuing subject matter jurisdiction to hear the parties’ motions to confirm or vacate the award, even though there is no independent basis for federal question or diversity jurisdiction? Can the existing but stayed federal-question lawsuit provide a “jurisdictional anchor” for the motions to confirm or vacate even though the Court would not, under Badgerow, have subject matter jurisdiction over those motions if either were brought as an independent, freestanding petition to confirm or vacate an award?

SmartSky, as we’ve seen, says the answer to those questions is no: the parties moving to confirm or vacate must establish an independent basis for subject matter jurisdiction even when the motion is brought in a pre-existing but stayed lawsuit over which the Court undisputedly had federal question jurisdiction.

SmartSky has flatly rejected the “jurisdictional anchor” theory (a/k/a “anchor jurisdiction”), under which the answer would be yes: the parties do not have to establish an independent basis for subject matter jurisdiction because they are filing their motions in a preexisting stayed action over which the Court has subject matter jurisdiction.

SmartSky Caused a Circuit Split Concerning the Viability of Anchor Jurisdiction

SmartSky‘s conclusion directly conflicts with the only other post-Badgerow U.S. Circuit Court of Appeals decision to address anchor jurisdiction, Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4^th 1099 (7^th Cir. 2023). If we count pre-Badgerow cases, SmartSky also conflict with the pro-anchor-jurisdiction holdings of the Second, Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits. Dodson Int’l Parts v. Williams Int’l Co., 12 F.4th 1212, 1227-28 (10th Cir. 2021) (citing cases).

SmartSky’s Petition for Rehearing and Rehearing En Banc

Arbitration proponent SmartSky has added to its legal team SCOTUS ace Daniel L. Geyser, Esq., Chair of Haynes and Boone, LLP‘s U.S. Supreme Court Practice, and, with Mr. Geyser’s assistance, prepared and submitted a very well-written and persuasive Petition for Rehearing and Rehearing En Banc, which among other things, pointed out the Circuit conflicts which SmartSky has created with both pre- and post-Badgerow decisions and explained why SmartSky believes the Fourth Circuit misconstrued Badgerow and failed to adhere to settled subject-matter-jurisdiction principles. SmartSky, No. 22-1253, Dk. 77.

The Petition also pointed out that, even if SmartSky correctly construed Badgerow, there is an independent basis for jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) because two of the parties are foreign citizens, DAG Wireless LTD (“Wireless”) and David D. Gross.

Both of these persons are, according to SmartSky, identified on the face of the petition as Israeli citizens (Wireless was identified as an Israeli company and D. Gross as an Israeli resident). Smartksy points out that the award therefore falls under the Convention and its enforcement raises a federal question. See 9 U.S.C. §§ 202, 203, & 207; 28 U.S.C. § 1331; 22-1253, Dk. 77 at 13-16.

On March 13, 2024, the Fourth Circuit denied the petition. 22-1253, Dk. 80. That raises the possibility that SmartSky might petition SCOTUS for certiorari, something that wouldn’t surprise the author given that Mr. Geyser has joined its team. If SmartSky petitions for certiorari, SCOTUS will presumably have to consider whether the current split in the circuits warrants certiorari or whether it should wait until more circuits have ruled on the issue post-Badgerow.

The author plans to submit to an ADR trade publication an article analyzing and critiquing SmartSky in some detail. For now, we briefly summarize what transpired in SmartSky and the reasons the Court gave for its ruling. Continue Reading »

Ninth Circuit Clarifies Arbitral Summons Jurisdiction and Venue under New York Convention

August 19th, 2022 Application to Enforce Arbitral Summons, Arbitral Subpoenas, Arbitration Law, Arbitration Practice and Procedure, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, FAA Chapter 1, FAA Chapter 2, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 201, Federal Arbitration Act Section 202, Federal Arbitration Act Section 203, Federal Arbitration Act Section 204, Federal Arbitration Act Section 7, Federal Courts, Federal Question, Federal Subject Matter Jurisdiction, International Arbitration, New York Convention, Nuts & Bolts, Nuts & Bolts: Arbitration, Petition to Enforce Arbitral Summons, Practice and Procedure, Pre-Award Federal Arbitration Act Litigation, Section 7, Statutory Interpretation and Construction, Subject Matter Jurisdiction, Subpoenas, United States Court of Appeals for the Ninth Circuit, United States Supreme Court, Venue Comments Off

Summons | Petition to Enforce The United States Court of Appeals for the Ninth Circuit recently provided useful guidance on what might be described as the arcane of the arcane: arbitral summons or subpoena practice in cases governed by Chapter Two of the Federal Arbitration Act, which implements the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention” or the “New York Convention”). See 9 U.S.C. § 201, 202. We’ve discussed arbitral summons practice in domestic cases—itself an arcane subject— in posts published in 2020, here, here, and here.

In Jones Day v. Orrick, Herrington & Sutcliffe, LLP, No. 21-16642, slip op. (9^th Cir. Aug. 1, 2022), the Court made important rulings concerning (a) federal court subject matter jurisdiction over a Chapter One arbitral summons in a case governed by Chapter Two of the FAA, and (b) proper venue for enforcing an arbitral summons in a case where the third-party witness is not subject to personal jurisdiction in the district embracing the seat of the arbitration.

Yes, these rulings may appear arcane, but they are highly relevant to those who arbitrate cases falling under the New York Convention, especially cases involving arbitrations sited in the U.S. where one or more parties are citizens of foreign states, or where the agreement or award arises out of a commercial, legal “relationship involving property located outside the U.S., envisages performance or enforcement abroad, or has some other reasonable relationship with one or more foreign states.” See 9 U.S.C. § 202.

Background

Jones Day arose out of an arbitration between a law firm (the “Firm”) and a former partner, a German national (the “Former Partner”), who was based in Paris, and left Jones Day to join another firm (the “Competitor Firm”). The arbitration agreement designated Washington, D.C. as the arbitration situs. The parties’ arbitration agreement fell under the Convention. See 9 U.S.C. § 202.

The Firm requested the arbitrator to issue a subpoena or summons to the Competitor Firm, requiring it to appear before the arbitrator in Washington, D.C. and produce documents.

When the Competitor Firm did not appear and produce documents, the Firm attempted to enforce the subpoena in the Superior Court for the District of Columbia, but the D.C. court dismissed the proceeding for lack of personal jurisdiction. The Competitor Firm had its principal place of business in San Francisco and was apparently not amenable to personal jurisdiction in the District of Columbia.

The Court also ruled that, under Section 7 of the Federal Arbitration Act, the Competitor Firm was required to enforce the arbitral summons in a United States Federal District Court.

The Firm then persuaded the Arbitrator to issue revised subpoenas requiring two of the Competitor Firm’s partners, who resided in the Northern District of California, to appear before the Arbitrator in San Jose, California, which is within the Northern District of California.

When the Competitor Firm refused to comply with the revised arbitral summons, the Firm commenced an action in the United States District Court for the Northern District of California against the Competitor Firm and the two summonsed partners.

The district court denied the application on the ground that it had no authority to enforce the summonses because under Section 7 of the FAA (a) the only court that can enforce an arbitral summons is the court in which the arbitrator sits; (b) Washington D.C. was the designated arbitration situs; and (c) the arbitrator can “sit” in one location only, here Washington, D.C. Having denied the application on improper venue grounds, the district court declined to decide whether it had federal subject matter jurisdiction over the application.

Ninth Circuit Determines the District Court had Subject Matter Jurisdiction to Enforce the Arbitral Summons

The Court engaged in a textual analysis of Chapter Two to determine whether there was subject matter jurisdiction over the petition. Section 203, the Court explained, confers on federal courts original subject matter jurisdiction, irrespective of the amount in controversy, over “[a]n action or proceeding falling under the Convention.” 9 U.S.C. § 203; Jones Day, slip op. at 6.

The parties did not dispute, and the Court held, that the application to enforce the summons was an “action or proceeding.” There was also no question that the parties’ arbitration agreement “fall[s] under the Convention” within the meaning of 9 U.S.C. § 202; slip op. at 6.

The question was whether the “action or proceeding” to enforce arbitral summons falls under the Convention. The Competitor urged that “because Congress ‘conspicuously’ did not include [in Chapter Two] a provision regarding petitions to enforce an arbitral summons, such a petition is not an action or a proceeding encompassed under § 203.” Slip op. at 7. To the contrary, said the Competitor Firm, Chapter Two expressly authorizes only three actions or proceedings: (a) “orders to compel arbitration, 9 U.S.C. § 206[; (b)] appointments of arbitrators in accordance with an arbitration agreement, id.[; and (c)]. . . orders confirming arbitration awards, 9 U.S.C. § 207.” Slip op. at 7.

The Competitor attempted to support its argument by arguing that “‘fall under’ means to be ‘listed or classified as’ or ‘included in’. . . .” Slip op. at 7 (quoting Webster’s New World Dictionary and MacMillan Contemporary Dictionary).

The Court, however, rejected that argument, explaining that “dictionaries from around 1970” (Chapter Two’s enactment date) “embrace a broader definition of ‘fall under’. . . .” Slip op. at 7 (quoting Compact Edition of the Oxford English Dictionary Vol. I 955 (1971) (the “Compact Edition”) and Oxford Dictionary of Current Idiomatic English Vol. I 102 (1975) (“Oxford Idiomatic”). Those dictionaries defined “fall under” as “‘[t]o be brought under the operation or scope of, be subject to’[,]” slip op. at 7 (quoting Compact Edition), and to “‘be classified as, be placed within a certain category[.]’” Slip op. at 7 (quoting Oxford Idiomatic).

The Court’s Arbitral Summons Subject Matter Jurisdiction Conclusion is Further Supported by the Convention’s and Chapter Two’s Structure

The Court found further support in the Convention’s and Chapter Two’s structure suggesting that to “fall under” the Convention, specific actions or proceedings need not be explicitly stated in the Convention or Chapter Two.

The Court relied heavily on the U.S. Supreme Court’s 2020 decision in G.E. Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637 (2020), in which “the [U.S. Supreme] Court determined that the domestic doctrine of equitable estoppel, which permits the enforcement of arbitration agreements against nonsignatories, does not conflict with the Convention, and so is applicable in international arbitrations.” Slip op. at 8 (citations omitted).

Outokumpu concerned Article II(3) of the Convention, which provides that “courts of a contracting state ‘shall. . . refer the parties to arbitration.” Convention, Art. II(3). The arbitration challenger in Outokumpu argued that Article II(3) authorized Courts to refer only signatory “parties” to the arbitration, and did not permit courts to use the equitable estoppel doctrine to refer nonsignatories to arbitration.

Outokumpu reasoned that Convention “Article II(3) does not preclude application of the domestic doctrine of equitable estoppel because it ‘contains no exclusionary language; it does not state that arbitration agreements shall be enforced only in the identified circumstances.’” Jones Day, slip op. at 8 (quoting Outokumpu, 140 S. Ct. at 1645) (emphasis in original). The Supreme Court, explained the Ninth Circuit, “viewed a counter interpretation inappropriate because ‘the provisions of Article II contemplate the use of domestic doctrines to fills gaps in the Convention.’” Slip op. at 8 (quoting Outokumpu, 140 S. Ct. at 1645). The Supreme Court therefore “did not ‘read the nonexclusive language of [Article II(3) of the Convention] to set a ceiling that tacitly precludes the use of domestic law to enforce arbitration agreements.’” Slip op. at 8-9 (quoting Outokumpu, 140 S. Ct. at 1645; bracketed material in original).

The Ninth Circuit said the Supreme Court’s analysis applied equally to the question whether the Convention or Chapter Two of the FAA contemplated a petition to enforce an arbitral summons. Slip op. at 9. “There is[,]” said the Ninth Circuit, “no language in [Chapter Two or the Convention]. . . that limits the tools that may be utilized in international arbitrations in ways domestic arbitrations are not so limited.” Slip op. at 9.

The Ninth Circuit concluded that the Competitor Firm’s “argument that the only permissible judicial actions or proceedings are those explicitly listed in Chapter Two . . . runs afoul of Chapter Two and the Convention’s plain language, structure, and objectives.” Slip op. at 9. The Court said the only limitation in the Convention or Chapter Two is 9 U.S.C. § 208, “which as the Supreme Court noted in [Outokumpu]. . . , disallows only those processes provided for in domestic arbitrations under Chapter One that conflict with Chapter Two of the Convention.” Slip op. at 9 (citations omitted). But enforcement of an arbitral summons does not conflict with Convention or Chapter Two—such enforcement “only aids in the arbitration process.” Slip op. at 9.

The Court’s Arbitral Summons Subject Matter Jurisdiction Conclusion is Further Supported by Section 205, Chapter Two’s Removal Jurisdiction Provision

The Court found further support for its subject matter jurisdiction conclusion in Section 205 of the FAA, which concerns the removal jurisdiction of federal court in Chapter Two cases.

Section 205 states that “[w]here the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention, the defendant or the defendants may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States for the district and division embracing the place where the action or proceeding is pending.” 9 U.S.C. § 205. Significantly, a district court’s removal jurisdiction is triggered when the subject matter of the state court action or proceeding “relates to” an “agreement or award falling under the Convention.” 9 U.S.C. § 205 (emphasis added). See Jones Day, slip op. at 9-10.

As the Ninth Circuit astutely observed, “[i]f ‘falling under’ in § 203 is not deemed at least as coextensive with ‘relates to’ in § 205, then that would mean Congress intended the district courts to have a narrower scope of original jurisdiction than removal jurisdiction in enforcing international arbitration awards.” Slip op. at 10 (quoting 9 U.S.C. § 205). But, said the Court, inferring such an intent would contravene “the very purpose of the Convention and the Chapter Two implementing procedures[,]” which “is to encourage arbitration and to authorize district courts to take actions necessary to ensure that the parties’ underlying controversy is successfully resolved through arbitration.” See slip op. at 10 (citation and quotation omitted).

As the Ninth Circuit explained, imputing such an intent would lead to strange results: “The irony of [the Competitor Firm’s]. . . contrary position is that, in this very case where it asserts the Northern District of California lacks original jurisdiction, the same court would have had removal jurisdiction under FAA § 205 had Jones Day filed its petition to enforce the summons in San Francisco Superior Court.” Slip op. at 10.

The Competitor Firm could, said the Court, in this case have removed the case to federal court for purpose of “opposing enforcement” of the arbitrator’s summons. Slip op. at 10. The Ninth Circuit said “[t]his would be an absurd result, especially in light of congressional policy to enforce arbitration-not resist it-and the proceedings that further arbitration of international disputes.” Slip op. at 10 (citing 9 U.S.C. §§ 206, 207).

The Court then exhaustively discussed cases from the Fifth, Second, and Eleventh Circuit that supported its conclusion that “falling under” in Section 203 and “relate to” in Section 205 have “the same meaning for purposes of articulating the federal courts’ original jurisdiction in § 203.” Slip op. at 11 & 9-13; see Stemcor USA Inc. v. CIA Siderurgica do Para Cosipar, 927 F.3d 906 (5^th Cir. 2019); Scandinavian Reinsurance Co. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60 (2d Cir. 2012); Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH, 921 F.3d 1291, 1299 (11^th Cir. 2019). These cases “expansive[ly]” construed Section 203, and the Court formulated from them a two-part test for determining if under the Convention and Chapter Two a federal court has original jurisdiction over an action or proceeding.

The Ninth Circuit’s Test for Whether a Federal District Court has Original Jurisdiction under Section 203 over an Action or Proceeding to Enforce an Arbitral Summons

Drawing from its interpretation of Section 203 and 205, and cases construing those provisions, the Court held “that a federal court has original jurisdiction over an action or proceeding if two requirements are met: (1) there is an underlying arbitration agreement or award that falls under the Convention, and (2) the action or proceeding relates to that arbitration agreement or award.” Slip op. at 13. The Court further explained that, “for purposes of the second requirement, we adopt the meaning of ‘relates to,’ which we previously defined for purposes of § 205, as whether the proceeding ‘could conceivably affect the outcome of the plaintiff’s case.” Slip op. at 13 (quoting Infuturia Global Ltd. v. Sequus Pharms., Inc., 631 F.3d 1133, 1138 (9^th Cir. 2011) (emphasis in original; internal citation omitted)).

The Ninth Circuit Concludes that the District Court had Subject Matter Jurisdiction over the Arbitral Summons Enforcement Petition

The Ninth Circuit had no difficulty finding that the district court had subject matter jurisdiction. First, the case unquestionably involved an arbitration agreement “falling under” the Convention because it involved an “arbitration agreement between [the Firm], an international law firm residing for jurisdictional purposes in Washington D.C., and its former non-U.S. citizen partner. . . .” Slip op. at 14; see 9 U.S.C. § 202 (defining agreements and awards falling under the Convention).

Second, the arbitral summons petition ” relates to the underlying arbitration agreement, as the arbitrator determined that evidence [to be] adduced. . . may be material to resolving the dispute.” Slip op. at 14.

As respects the “relates to” requirement, the Court went a step further and declared that the Section 7 arbitral summons enforcement proceedings were “[n]ot only. . . ‘related to’ an arbitration agreement falling under the Convention[]” but were “necessary ancillary proceedings that ensure the proper functioning of the underlying arbitration.” Slip op. 14. They present to the Court an “aspect of enforcing the parties’ agreement to arbitrate. . .”—“the enjoyment of a key procedural attribute of the arbitration the parties bargained for.” Slip op. at 15 (quotation and citation omitted). “Recognizing and enforcing arbitration agreements includes[,]” said the Ninth Circuit, “facilitating the arbitration process and providing arbitrators—in both domestic and international arbitrations—with access to the ancillary actions and proceedings necessary to arrive at an arbitration award.” Slip op. at 15-16. And that “includes arbitral subpoenas and their enforcement.” Slip op. at 15-16.

Venue was Proper in the Northern District of California

Section 204 of the FAA did not authorize venue in the Northern District of California and therefore the question was whether Section 204 was exclusive or permissive. If exclusive, venue would be improper. If permissive, venue would be proper if authorized by the General Venue Statute, 28 U.S.C. § 1391.

The Court held that Section 204 was permissive and venue was proper under the General Venue Statute. The district court held that venue did not lie in the Northern District of California because (a) [Chapter One,] Section 7 of the FAA “provides for enforcement of an arbitral summons in the ‘district in which such arbitrators, or a majority of them are sitting[,]” slip op. at 19 (quoting 9 U.S.C. § 7); (b) “Washington D.C. [, rather than a place within the Northern District of California,] is the ‘seat of the underlying arbitration,’” and, accordingly, (c) “[the district court]. . . lacked jurisdiction to enforce the summons.” Slip op. at 19.

But putting aside the parties’ dispute about whether Section 7 provides for venue, and if so where, FAA Section 204 provides for venue in actions and proceedings falling under the Convention. The district court did not consider that provision, including whether Section 204 is exclusive or permissive. See slip op. at 19 & n.4.

Convention Venue Statute: FAA Section 204

Section 204, entitled “Venue,” states that “[a]n action or proceeding over which the district courts have jurisdiction pursuant to section 203 of this title may be brought in any such court in which save for the arbitration agreement an action or proceeding with respect to the controversy between the parties could be brought, or in such court for the district and division which embraces the place designated in the agreement as the place of arbitration if such place is within the United States.” 9 U.S.C. § 204.

Although the Court did not discuss them, there are two reasons why Section 204 did not authorize venue over the proceeding. First, an “action or proceeding with respect to the controversy between the parties” to the arbitration agreement—i.e., between the Firm and the Former Partner—would not have been properly venued in the Northern District of California. The Court did not consider whether Section 204 might be interpreted to authorize venue based on the arbitral summons enforcement controversy between the Firm and the Competitor Firm.

Second, even though the Firm followed the usual procedure of having the arbitrator convene a hearing in a district in which the witness would be within the enforcing court’s subpoena power, Section 204 provides for venue based on where the arbitrators are sitting only in cases where the arbitrators are sitting “in the place designated in the agreement as the place of arbitration. . . .” 9 U.S.C. § 204. Washington, D.C. was the place designated in the parties’ agreement as the arbitration situs, and obviously Washington, D.C. is not in the Northern District of California.

Whether Section 204 is a Mandatory or Permissive Venue Statute

Because Section 204 did not provide for venue, the issue boiled down to whether Section 204 is a mandatory venue provision or a permissive one. The Court held that Section 204 was permissive, and that venue was therefore proper under the General Venue Statute, 28 U.S.C. § 1391, because the Competitor Firm’s principal place of business was within the Northern District of California. See slip op. at 20.

First, the Court discussed how Section 1391 was intended to ensure that, if there was personal jurisdiction over a defendant, venue would always be proper in some district. Absent evidence that Congress intended to restrict the broad scope of venue provided by Section 1391, another federal statute providing for venue will be construed to be permissive, not mandatory. Slip op. at 16-17.

Second, the Court found that “[n]othing in the text of § 204 indicates that Congress intended. . . [Section 204] to be exclusive or restrictively applied.” Slip op. 17. Section 204, the sole venue provision in FAA Chapter Two, is silent about the General Venue Statute, and uses the permissive language “‘may be brought’ to describe the additional authorized venues.” Slip op. at 17 (quoting 9 U.S.C. § 204).

Third, the Court explained that Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193 (2000) “inform[ed]” its “reading of § 204.” Slip op. at 17. Cortez Byrd addressed whether the venue provisions of Sections 9, 10, and 11 of FAA Chapter One—which authorize venue for post-award litigation in the district where the award was made—were mandatory or permissive. Slip op. at 17-18.

Cortez Byrd held that the venue provisions of FAA Sections 9, 10, and 11 were permissive and that the venue for post-award litigation was proper as long as it was proper under those sections or under the General Venue Statute. Slip op. at 17-18 (citing Cortez Byrd, 529 U.S. at 199-200, 204). When the FAA was enacted in 1925 the General Venue Statute had a more limited scope, providing for venue only in the district where the defendant resided. Slip op. at 18.

The venue provisions in FAA Sections 9, 10, and 11 expanded the scope of the then-in-effect General Venue Statute, authorizing venue in the district where the award was made. The U.S. Supreme Court reasoned that “‘[t]he enactment of the special venue provisions in the FAA thus had an obviously liberalizing effect, undiminished by any suggestion, textual or otherwise, that Congress meant simultaneously to foreclose a suit where the defendant resided.’” Slip op. at 17-18 (quoting Cortez Byrd, 529 U.S. at 200).

Fourth, the Court explained that in Textile Unlimited, Inc. v. A. BMH & Co., Inc., 240 F.3d 781 (9^th Cir. 2001) it had “expanded” the Cortez Byrd rationale by holding that “the FAA venue provision in 9 U.S.C. § 4, governing actions to compel arbitration, is likewise permissive rather than exclusive.” Slip op. at 18. “We understood Cortez Byrd[,]” said the Court, “to instruct us to ‘weave the various venue strands of the [Federal Arbitration] Act together into a seamless fabric which does not clash with other federal venue statutes.’” Slip op. at 18 (quoting Textile Unlimited, 240 F.3d at 784).

Fifth, the Court rejected the Competitor Firm’s argument that FAA Section 201 transformed Section 204 into a mandatory venue provision. Slip op. at 19-20. Section 201 states the “Convention. . . shall be enforced in the United States courts in accordance with this chapter.” 9 U.S.C. § 201.

The Competitor Firm argued that the term “shall” in Section 201 rendered Section 204’s venue provision mandatory. The Competitor Firm relied on Johnson v. Payless Drug Stores Nw., Inc., 950 F.2d 586 (9^th Cir. 1991), which held in a Title VII case that 42 U.S.C. § 2000e-5(f) was a mandatory venue provision that superseded the General Venue Statute. But the Court explained that “Title VII. . . expressly provided that the venue ‘provisions of section 2000e-5(f) . . . shall govern’ employment discrimination actions.” ” Slip op. at 19-20 (quoting Johnson, 950 F.2d at 587). Johnson therefore concluded that the “language [of 42 U.S.C. § 2000-e-16(d)] ‘is mandatory.’” Slip op. at 19-20 (quoting Johnson, 950 F.2d at 587).

The Ninth Circuit distinguished the explicit statutory command of 42 U.S.C. § 2000e-16(d) from Section 204’s language, which it deemed not to be mandatory. Slip op. at 20.

Because the Court had subject matter jurisdiction, the parties did not dispute that venue was proper under the General Venue Statute, and because there were no other challenges to the petitions, the Ninth Circuit reversed the district court and remanded “with instructions to enforce . . . [the Firm’s] petitions to compel [the Competitor Firm] and its partners to comply with the arbitral summonses.” Slip op. at 20-21.

Contacting the Author

If you have any questions about this article, arbitration, arbitration-law, arbitration-related litigation, or the services that the Loree Law Firm offers, then please contact the author, Philip Loree Jr., at (516) 941-6094 or at PJL1@LoreeLawFirm.com.

Philip J. Loree Jr. has more than 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 licensed to practice law in New York and before various federal district and federal appellate courts.

ATTORNEY ADVERTISING NOTICE: Prior results do not guarantee a similar outcome.

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Chapter Two Domestic Awards | Post-Award Federal Arbitration Act Enforcement Litigation | Businessperson’s Federal Arbitration Act FAQ Guide

July 17th, 2020 Awards, Businessperson's FAQ Guide to the Federal Arbitration Act, Confirmation of Awards, Consent to Confirmation, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, FAA Chapter 1, FAA Chapter 2, FAA Chapter 3, Federal Arbitration Act 202, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 2, Federal Arbitration Act Section 207, Federal Arbitration Act Section 9, Inter-American Convention on International Commercial Arbitration, International Arbitration, New York Convention, Nuts & Bolts, Nuts & Bolts: Arbitration, Petition or Application to Confirm Award, Practice and Procedure, Rights and Obligations of Nonsignatories, Section 9, Small Business B-2-B Arbitration 1 Comment »

The last three segments of the Businessperson’s Federal Arbitration Act FAQ Guide discussed the substantive and procedural requirements for confirming a Chapter One Domestic Award, and answered additional FAQs concerning the confirmation of such awards. (See here, here, and here.) This segment focuses on how confirming Chapter Two Domestic Awards—i.e., domestic awards that fall under the Convention on the Recognition of Foreign Arbitral Awards (the “Convention”)—differs from confirming Chapter One Domestic Awards—i.e., domestic awards that fall under Chapter One of the Federal Arbitration Act only and not under Chapters Two or Three.

This FAQ guide distinguishes between “Chapter One Domestic Awards” and “Chapter Two Domestic Awards.” For our purposes, an award is “domestic” when it is made in the United States, that is, by an arbitrator or panel of arbitrators sitting in the territorial jurisdiction of the United States.

An award made in the United is a “Chapter One Domestic Award” when it falls under Chapter One of the Federal Arbitration Act, but not under Chapters Two or Three, which implement the Convention and the Inter-American Convention on International Commercial Arbitration (the “Panama Convention”).

What is a Chapter Two Domestic Award?

An award is a “Chapter Two Domestic Award” when it is made in the United States, but, for purposes of Section 202 of the Federal Arbitration Act, and Art. I(1) of the Convention, is “not considered” to be a “domestic award.” See Convention, Art. I(1). Such awards ordinarily fall under both the Convention and Section 2 of the Federal Arbitration Award, and thus under Chapters One and Two of the Federal Arbitration Act.

Section 9 | Confirming Awards Part III | Post-Award Federal Arbitration Act Enforcement Litigation Businessperson’s Federal Arbitration Act FAQ Guide

June 22nd, 2020 Arbitration and Mediation FAQs, Arbitration Practice and Procedure, Awards, Businessperson's FAQ Guide to the Federal Arbitration Act, Confirmation of Awards, FAA Chapter 1, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 9, Nuts & Bolts, Nuts & Bolts: Arbitration, Petition or Application to Confirm Award, Section 9, Uncategorized 4 Comments »

In the last two segments of the Businessperson’s Federal Arbitration Act FAQ Guide, we discussed the substantive and procedural requirements for confirming under Section 9 Chapter One Domestic Awards, that is, domestic awards that fall under Chapter One of the Federal Arbitration Act, but not under Chapter Two, which implements the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. (See here and here.) Now we address additional, FAQs concerning the confirmation under Section 9 of Chapter One Domestic Awards.

Does an Application to Confirm under Section 9 a Chapter One Domestic Award Require One to File a Full-Blown Law Suit to Confirm an Award?

Fortunately, the answer is no. Like all other applications for relief under the FAA, an application to confirm an award under Section 9 is a summary or expedited proceeding, not a regular lawsuit. Rule 81(a)(6)(B) of the Federal Rules of Civil Procedure provides that the Federal Rules “to the extent applicable, govern proceedings under the following laws, except as these laws provide for other procedures. . . (B) 9 U.S.C., relating to arbitration. . . .” Fed. R. Civ. P. 81(a)(6)(B).

Section 6 of the FAA “provide[s] for. . . procedures” other than those applicable to ordinary civil actions because it requires applications for relief under the FAA to be made and heard as motions:

Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise . . . expressly provided [in the FAA].
9 U.S.C. § 6.

A Section 9 action to confirm an award is, of course, “[a]n application to the court” under the FAA, and thus, unless the FAA otherwise provides, must be “made and heard in the manner provided by law for the making and hearing of motions. . . .”

Confirming Arbitration Awards under Section 9: What Papers does a Party File to Apply for Confirmation of an Award?

Confirming Awards Part I | Post-Award Federal Arbitration Act Enforcement Litigation | Section 9 of the Federal Arbitration Act | Businessperson’s Federal Arbitration Act FAQ Guide

June 12th, 2020 Arbitrability, Arbitration and Mediation FAQs, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Awards, Confirmation of Awards, Consent to Confirmation, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, FAA Chapter 1, FAA Chapter 2, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 1, Federal Arbitration Act Section 2, Federal Arbitration Act Section 9, Judicial Review of Arbitration Awards, Nuts & Bolts, Nuts & Bolts: Arbitration, Petition or Application to Confirm Award, Small Business B-2-B Arbitration 5 Comments »

Favorable arbitration awards are wonderful things, but they do not enforce themselves. Sometimes the other side voluntarily complies, but if not, there is little the arbitrator can do to help.

Arbitrators are not judges and do not have the authority to garnish wages, seize property, foreclose on encumbered property, freeze bank accounts, impose contempt sanctions, and so forth. Parties can delegate to arbitrators broad adjudicatory and remedial authority, but that is relevant only to the nature and scope of their awards and does not confer power on the arbitrators to enforce their awards coercively.

Apart from its potential preclusive effect in subsequent litigation or arbitration, an arbitration award stands on the same footing as any other privately prepared legal document, and for all intents and purposes it is a contract made for the parties by their joint agent of sorts—the arbitrator or arbitration panel. It may be intended by the arbitrator or panel, and at least one of the parties, to have legal effect, but it is up to a court to say what legal effect it has, and, if necessary, to implement that legal effect through coercive enforcement.

A judgment, by contrast, is an official decree by a governmental body (the court) that not only can be coercively enforced through subsequent summary proceedings in the same or other courts (including courts in other states and federal judicial districts), but is, to some extent, self-enforcing. A judgment, for example, can ordinarily be filed as a statutory lien on real property, and applicable state or federal law may, for example, authorize attorneys to avail their clients of certain judgment-enforcement-related remedies without prior judicial authorization.

The Federal Arbitration Act, and most or all state arbitration statutes, provide for enforcement of arbitration awards through a procedure by which a party may request a court to enter judgment on the award, that is to “confirm” it. Once an award has been reduced to judgment, it can be enforced to the same extent as any other judgment. See, e.g., 9 U.S.C. § 13 (Under Federal Arbitration Act, judgment on award “shall have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it is entered”); Fla. Stat. § 682.15(1)( “The judgment may be recorded, docketed, and enforced as any other judgment in a civil action.”); N.Y. Civ. Prac. L. & R. § 7514(a) (“A judgment shall be entered upon the confirmation of an award.”).

Chapter 2 of the FAA provides some different rules that apply to the confirmation of domestic arbitration awards that fall under the Convention on the Recognition of Foreign Arbitral Awards (the “Convention”), and the enforcement of foreign arbitration awards falling under the Convention (i.e., awards made in territory of a country that is a signatory to the Convention).

Our focus here is on the Federal Arbitration Act’s requirements for confirming arbitration awards made in the U.S., including awards that fall under Chapter 2 of the Federal Arbitration Act. These awards fall into two categories: (a) awards that fall under Chapter One of the Federal Arbitration Act only (“Chapter One Domestic Awards”); and (b) awards made in the U.S. that fall under the Convention, and thus under both Chapter One and Chapter Two of the Federal Arbitration Act (“Chapter Two Domestic Awards”).

This segment addresses FAQs concerning the confirmation of Chapter One Domestic Awards and focuses on the substantive requirements for confirming Chapter One Domestic Awards under the Federal Arbitration Act. The next segment will discuss the procedural requirements for confirming such Awards. Future posts will answer some additional FAQs concerning the confirmation of such Awards, and another future segment will review special requirements applicable to the confirmation of Chapter Two Domestic Awards.

GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC | International Institute for Conflict Prevention and Resolution Interviews by Video Conference Philip J. Loree Jr. and Richard D. Faulkner

June 2nd, 2020 ADR Social Media, Arbitrability, Arbitrability - Equitable Estoppel, Arbitrability - Nonsignatories, Arbitration Agreements, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, CPR Speaks Blog of the CPR Institute, Enforcing Arbitration Agreements, Federal Arbitration Act Section 2, First Principle - Consent not Coercion, Gateway Disputes, Gateway Questions, International Arbitration, International Institute for Conflict Prevention and Resolution (CPR), Loree & Loree, Practice and Procedure, Pre-Award Federal Arbitration Act Litigation, Questions of Arbitrability, Rights and Obligations of Nonsignatories, United States Supreme Court Comments Off

On June 1, 2020 the United States Supreme Court issued its 9-0 decision in GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC. In an opinion authored by Associate Justice Clarence Thomas the Court held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards did not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. Associate Justice Sonia M. Sotomayor wrote a concurring opinion.

On the same day the Court decided GE Power, our friend and colleague Russ Bleemer, Editor of Alternatives to the High Cost of Litigation, Newsletter of the International Institute for Conflict Prevention and Resolution (“CPR”), interviewed our friend and colleague Richard D. Faulkner and Philip J. Loree Jr. about the case and what it means for practitioners.

You can watch the video-conference interview HERE.

Also on June 1, 2020 Russ also wrote an excellent post about GE Energy for CPR’s blog, CPR Speaks, which explains in detail the background of the case and the rationale for the Court’s opinion, as well as Justice Sotomayor’s concurring opinion. You can read that post HERE.

Contacting the Author

If you have any questions about this article, arbitration, arbitration-law, arbitration-related litigation, then please contact Phil Loree Jr., at (516) 941-6094 or at PJL1@LoreeLawFirm.com.

Philip J. Loree Jr. is a partner and founding member of Loree & Loree. He has 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.

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 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.)

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.

Appointing Arbitrators | Businessperson’s Federal Arbitration Act FAQ Guide | Nuts and Bolts of Pre-Award Federal Arbitration Act Practice

April 29th, 2020 Application to Appoint Arbitrator, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Arbitrator Selection and Qualification Provisions, Businessperson's FAQ Guide to the Federal Arbitration Act, FAA Chapter 1, Federal Arbitration Act Section 5, First Principle - Consent not Coercion, Nuts & Bolts, Nuts & Bolts: Arbitration, Practice and Procedure, Section 5, Small Business B-2-B Arbitration 1 Comment »

Chapter One of the Federal Arbitration Act enforces arbitration agreements during the pre-award stage by authorizing orders: (a) staying litigation of arbitrable claims; (b) compelling arbitration; (c) appointing one or more arbitrators; and (d) enforcing arbitral hearing subpoenas. We’ve discussed the basics of the first two of these remedies in prior installments of this post. This and one or more other future installments will address he third: an order appointing arbitrators.

This instalment addresses the following FAQs concerning the judicial appointment of arbitrators under 9 U.S.C. § 5:

Under what Circumstances can a Court Appoint Arbitrators under Section 5 of the Federal Arbitration Act?
What Papers Comprise an Application to Appoint an Arbitrator under Section 5?

The next installment will address the FAQs:

“How does Section 5 Work in Practice?”
“Does Section 5 of the Federal Arbitration Act authorize a Court to Appoint a Replacement Arbitrator if an Arbitrator Dies Prior to the Making of an Award?”

Under what Circumstances can a Court Appoint Arbitrators under Section 5 of the Federal Arbitration Act?

Section 5 of the Federal Arbitration Act provides that “[i]f in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed. . . .” 9 U.S.C. § 5. This provision of Section 5 reflects “the central or primary purpose of the [Federal Arbitration Act (“FAA”)][,]” which is “to ensure that private agreements to arbitrate are enforced according to their terms.” Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 678-80 (2010) (citation and quotations omitted). It also ensures enforcement of what Circuit Court Judge Richard A. Posner once dubbed the “cornerstone of the arbitral process”: “Selection of the decision maker by or with the consent of the parties. . . . Lefkovitz v. Wagner, 395 F.3d 773, 780 (2005) (Posner, J.); see, e.g., Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Art. V(1)(d), June 10, 1958, 21 U.S.T. 2519, T.I.A.S. No. 6997 (a/k/a the “New York Convention”) (implemented by 9 U.S.C. §§ 201, et. seq.) (award subject to challenge where “[t]he composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties”); Stolt-Nielsen, 559 U.S. at 668, 670 (one of the FAA’s “rules of fundamental importance” is parties “may choose who will resolve specific disputes”) (emphasis added; citations omitted); Encyclopaedia Universalis S.A. v. Encyclopaedia Brittanica, Inc., 403 F.3d 85, 91-92 (2d Cir. 2005) (vacating award by panel not convened in accordance with parties’ agreement); Cargill Rice, Inc. v. Empresa Nicaraguense Dealimentos Basicos, 25 F.3d 223, 226 (4th Cir. 1994) (same); Avis Rent A Car Sys., Inc. v. Garage Employees Union, 791 F.2d 22, 25 (2d Cir. 1986) (same).

In addition to directing that arbitrator selection and qualification provisions be enforced according to their terms, Section 5 authorizes court intervention for appointing arbitrators in three situations:

“if no method be provided therein. . . [;]”
“if a method be provided and any party thereto shall fail to avail himself of such method[;] or”
“if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy. . . .”

9 U.S.C. § 5.

In any of those situations Section 5 authorizes “either party” to make an “application” to the court for an order “designat[ing]” and “appoint[ing] “an arbitrator or arbitrators or umpire,” “who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein. . . .” 9 U.S.C. § 5. Section 5 also states that “unless otherwise provided in the agreement arbitration shall be by a single arbitrator.” 9 U.S.C. § 5.

Appointing Arbitrators: What Papers Comprise an Application to Appoint an Arbitrator under Section 5?

Like applications under Section 4 of the Federal Arbitration Act, and all other applications for relief under the Federal Arbitration Act, an application to appoint arbitrators under Section 5, when brought as an independent legal proceeding in federal district court, is a summary or expedited proceeding, not a regular lawsuit. The application, like all other Federal Arbitration Act applications, is governed by Section 6 of the Act, which provides that “[a]ny application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise . . . expressly provided [in the Federal Arbitration Act].” 9 U.S.C. § 6.

In cases where the application to appoint an arbitrator commences an independent proceeding in a federal district court, the papers in support of the application will ordinarily consist of: (a) a notice of application; (b) a summons; (c) the application itself; (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 paper.

Documents that should be submitted to the Court ordinarily include copies of: (a) the contract containing the arbitration agreement; (b) the arbitration demand and any related correspondence, including with the arbitrator provider; (c) any documents evidencing efforts to appoint an arbitrator or arbitration panel; (d) any documents evidencing the presence of one or more of the three grounds under which Section 5 authorizes a court to appoint an arbitrator; and (e) a list of arbitrators the court should consider appointing, along with their qualifications.

The application should show that: (a) the court has subject matter jurisdiction, personal jurisdiction, and venue; (b) the parties entered into a written arbitration agreement falling under the Federal Arbitration Act, or that the applicant is entitled to claim against the respondent under a written arbitration agreement; (c) at least one of the three grounds for Section 5 relief is present; (d) appointing an arbitrator from the applicant’s list is warranted in the circumstances, including under the parties’ agreement.

Please note. . .

This guide, including the installments that will follow in later posts, and prior installments, 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.

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 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. Loree & Loree added text to this photo.

Businessperson’s Federal Arbitration Act FAQ Guide II: Three Threshold Questions about the Federal Arbitration Act

January 21st, 2020 Arbitration Practice and Procedure, Businessperson's FAQ Guide to the Federal Arbitration Act, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, FAA Chapter 1, FAA Chapter 2, FAA Chapter 3, FAA Preemption of State Law, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 1, Federal Arbitration Act Section 2, Federal Arbitration Act Section 4, Federal Courts, Federal Question, Inter-American Convention on International Commercial Arbitration, New York Arbitration Law (CPLR Article 75), New York Convention, Nuts & Bolts: Arbitration, Panama Convention, Practice and Procedure, Rights and Obligations of Nonsignatories, Small Business B-2-B Arbitration, State Arbitration Law, State Arbitration Statutes, State Courts, United States Court of Appeals for the Second Circuit, United States Supreme Court 1 Comment »

This second instalment of the Businessperson’s Federal Arbitration Act FAQ Guide addresses three threshold questions pertinent to the Federal Arbitration Act (the “FAA” or “Federal Arbitration Act”):

1. Does Chapter 1 of the FAA apply to my arbitration agreement?

2. Assuming it does, will a federal district court have subject matter jurisdiction over FAA litigation concerning the agreement or any awards made under it?

3. Does the Federal Arbitration Act apply in state court?

Does Chapter 1 of the FAA Apply to My Arbitration Agreement?

If your written arbitration agreement is contained in a maritime contract or a contract affecting commerce, or concerns a dispute arising out of such a contract, then it falls under Chapter 1 of the Federal Arbitration Act, unless it falls within Section 1’s exemption for contracts of employment of transportation workers engaged in interstate commerce. (See here.) It may also fall under Chapters 2 or 3 of the FAA, which implement the New York and Panama Conventions.

In our first instalment of this FAQ guide (here) we explained that Federal Arbitration Act Section 2, as interpreted by the U.S. Supreme Court, applies to written, pre-dispute arbitration agreements in: (a) “maritime contract[s]” (“Maritime Contracts”); or (b) “contract[s] evidencing a transaction involving commerce. . . .” (“Contracts Affecting Commerce”). It also applies to written post-dispute arbitration agreements “to settle by arbitration a controversy thereafter arising out of such [Maritime Contracts or Contracts Affecting Commerce], or the refusal to perform the whole or any part thereof. . . .” 9 U.S.C. § 2; see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273-282 (1995); Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 55-58 (2003).

Section 2’s requirement that an arbitration agreement be “written” seems simple enough, and, for the most part, it is, at least in wholly domestic arbitrations to which Chapters 2 or 3 of the FAA do not concurrently apply. But there are some caveats.

First, just because a contract is required to be “written” doesn’t necessarily mean the arbitration agreement must be signed. The arbitration agreement between the parties need only be in writing, although the arbitration-agreement proponent would need to show that the parties assented to the writing.

For example, suppose A agrees to provide services for B and further agrees that any disputes arising out of or relating to their agreement will be submitted to arbitration. A and B proceed to memorialize their agreement in a writing, including the agreement to arbitrate, spelling out the essential terms of their agreement. While the writing is not signed or initialed, both parties agree that it reflects the essential terms of the parties’ bargain. The written memorialization of the agreement is sufficient to establish a “written” agreement, even though it is not signed by the party opposing its enforcement.

Second, provided there is a written agreement between at least two parties, persons who are not parties to that agreement (“nonparties”) may, in appropriate circumstances, enforce the agreement or be bound by it if general principles of state law permit that result. Such general principles include “‘assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel[.] . . .’” . Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009) (citations omitted). This Term the United States Supreme Court is to determine whether such principles apply in cases governed by Chapter 2.

As respects whether a “contract” “evidenc[es] a transaction involving commerce,” the U.S. Supreme Court has interpreted Section 2 broadly to mean the Federal Arbitration Act applies to arbitration agreements in contracts or transactions that “affect” commerce, that is, to any contract or transaction that Congress could regulate in the full exercise of its Commerce Clause powers. See Allied-Bruce, 513 U.S. at 281-82; U.S. Const. Art. I, § 8, Cl. 3 (giving Congress power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes”).

Whether a contract “affects” commerce depends on the facts concerning, among other things, the parties, the contract’s subject matter, and the actual or contemplated transactions constituting the contract’s performance or contemplated performance. See Alafabco, 539 U.S. at 56-57. A party does not have to demonstrate that the contract has a “specific” or “substantial” “effect upon interstate commerce if in the aggregate the economic activity in question would represent a general practice subject to federal control.” Id. (citations and quotations omitted). The question is whether the “aggregate economic activity in question” “bear[s] on interstate commerce in a substantial way.” Id. at 57.

Assuming that Chapter 1 of the FAA Applies to my Arbitration Agreement, Will a Federal District Court have Subject Matter jurisdiction over FAA Litigation Concerning the Agreement or any Awards Made under it?

Not necessarily. Unless an arbitration agreement also falls under Chapters 2 or 3 of the FAA, then there must be an independent basis for federal subject matter jurisdiction.

Arbitration Law FAQ: Chapter 1 of the Federal Arbitration Act

February 27th, 2019 Applicability of Federal Arbitration Act, Arbitration Agreements, Arbitration and Mediation FAQs, Federal Arbitration Act Section 1, Federal Arbitration Act Section 2, Nuts & Bolts: Arbitration Comments Off

This Arbitration Law FAQ guide briefly explains what the Federal Arbitration Act is, and then answers some frequently asked questions about Chapter 1 of the Act. It is not legal advice, nor a substitute for legal advice, and should not be relied upon as such.

If you desire or require legal advice or representation in a matter concerning commercial, labor, or any other arbitration-law matter, then do not hesitate to contact a skilled and experienced arbitration-law attorney. This guide provides some general information that may be able to assist you in your search for legal representation, or in simply obtaining a better understanding of some arbitration-law basics.

Arbitration Law FAQS: What is the Federal Arbitration Act?

Wholly Groundless Exception 3 - Chapter 1 Federal Arbitration Act 2

The Federal Arbitration Act is a federal statute enacted in 1925 that makes certain (but not all) arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. It was originally, and for many years, known as the “United States Arbitration Act,” but for simplicity’s sake we’ll refer to it as the “Federal Arbitration Act,” the “FAA,” or the “Act.”

It was passed at a time when courts were, for the most part, unwilling to enforce agreements to arbitrate because they thought that such agreements “divested” their “jurisdiction” over disputes that would ordinarily be decided by courts. In other words, many courts thought it wrong for courts to lend their assistance to the enforcement of contracts under which parties would agree to submit their disputes to private decision makers.

Even by the time the FAA was passed, arbitration was not new. For example, it can be traced back at least as far as medieval times, when various guilds used it as a way of resolving disputes according to what became known as the “law merchant,” an informal body of rules and principles that merchants believed should be applied to their disputes, but which common law courts did not, at the time, apply. The first arbitration agreement was reportedly included in a reinsurance contract in the late 18^th century, and George Washington apparently included an arbitration clause in his will.

As originally enacted, the FAA consisted of 15 provisions, section 14 of which Congress repealed in 1947, renumbering as Section 14 former Section 15. In 1970 Congress designated those remaining 14 provisions as “Chapter 1” of the FAA, and added a “Chapter 2,” which consists of various provisions implementing and enabling the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (a/k/a the “New York Convention”). In 1988 Congress added two additional provisions to Chapter 1 of the FAA, Sections 15 and 16. In 1990 Congress added to the FAA a Chapter 3, which consists of provisions implementing and enabling the Inter-American Convention on International Commercial Arbitration (a/k/a the “Panama Convention”).

The remainder of this FAQ guide focuses on Chapter 1 of the FAA.

Arbitration Law FAQs: What does Chapter 1 of the FAA do apart from declaring certain arbitration agreements to be valid, irrevocable, and enforceable?

Section 2 of the Federal Arbitration Act is sometimes referred to as the Act’s “enforcement command.” It is the provision that declares certain (but not all) arbitration agreements to be “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

Under Section 2, “arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms.” Schein v. Archer & White Sales, Inc., 586 U.S. ____, slip op. at *4 (Jan. 8, 2019) (citation and quotation omitted). Section 2 also “requires courts to place arbitration agreements on an equal footing with all other contracts.” Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1424 (2017) (quotations and citations omitted).

Section 1 of the FAA provides some definitions and exempts from the FAA a fairly limited universe of agreements that would otherwise fall within the scope of the Act. See 9 U.S.C. § 1. The other provisions of Chapter 1 implement the enforcement command by lending judicial support to the enforcement of arbitration agreements and awards. These are briefly summarized below:

Section 3 – Requires courts to stay litigation in favor of arbitration. 9 U.S.C. § 3.

Section 4 – Provides for courts to compel arbitration.

Section 5 – Provides for courts to appoint arbitrators when there has been a default in the arbitrator selection process.

Section 6 – Provides that motion practice rules apply to applications made under the FAA, thereby expediting the judicial disposition of such applications.

Section 7 – Provides for the judicial enforcement of certain arbitration subpoenas.

Section 8 – Provides that where the basis for federal subject matter jurisdiction is admiralty, then “the party claiming to be aggrieved may begin his proceeding [under the FAA]…by libel and seizure of the vessel or other property….” 9 U.S.C. § 8.

Section 9 – Provides for courts to confirm arbitration awards, that is, enter judgment upon them.

Section 10 – Authorizes courts to vacate arbitration awards in certain limited circumstances.

Section 11 – Authorizes courts to modify or correct arbitration awards in certain limited circumstances.

Section 12 – Provides rules concerning the service of a motion to vacate, modify, or correct an award, including a three-month time limit.

Section 13 – Specifies papers that must be filed with the clerk on motions to confirm, vacate, modify, or correct awards and provides that judgment entered on orders on such motions has the same force and effect of any other judgment entered by the court.

Section 14 – Specifies that agreements made as of the FAA’s 1925 effective date are subject to the FAA.

Section 15 – Provides that “Enforcement of arbitral agreements, confirmation of arbitral awards, and execution upon judgments based on orders confirming such awards shall not be refused on the basis of the Act of State doctrine.”

Section 16 – Specifies when appeals may be taken from orders made under the FAA, and authorizing appeals from final decisions with respect to arbitration.

How can I tell if an arbitration agreement or award is governed by Chapter 1 of the Federal Arbitration Act?

Whether an arbitration agreement falls under the FAA depends on whether: (a) the arbitration agreement is in writing; and (b) is part of a “maritime transaction” or of a contract that affects interstate commerce.

The starting point is, as before, Federal Arbitration Act Section 2’s enforcement command, which provides, with bracketed text added:

[A] A written provision [B] in any maritime transaction or [C] a contract evidencing a transaction involving commerce [D] to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or [E] an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, [F] shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2.

Section 2’s requirement that an arbitration agreement be “written” (Part [A]) seems simple enough, and, for the most part, it is. But remember, just because a contract is required to be “written” doesn’t mean the arbitration agreement must be signed.

As respects whether a “contract” “evidenc[es] a transaction involving commerce” (Part [C]), the U.S. Supreme Court has interpreted Section 2 broadly to mean the Federal Arbitration Act applies to arbitration agreements in contracts or transactions that affect commerce, that is, to any contract or transaction that Congress could regulate in the full exercise of its Commerce Clause powers. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 268, 281-82 (1995); U.S. Const. Art. I, § 8, Cl. 3 (giving Congress power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes”).

Whether a contract “affects” commerce depends on the facts concerning, among other things, the parties, the contract’s subject matter, and the actual or contemplated transactions constituting the contract’s performance or contemplated performance. See Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-57 (2003). A party does not have to demonstrate that the contract has a “specific” or “substantial” “effect upon interstate commerce if in the aggregate the economic activity in question would represent a general practice subject to federal control.” Id. (citations and quotations omitted). The question is whether the “aggregate economic activity in question” “bear[s] on interstate commerce in a substantial way.” Id. at 57.

Parts [A] through [D]] of Section 2 make the Federal Arbitration Act applicable to written, pre-dispute arbitration “provision[s]” in “maritime transactions” or in “contract[s] evidencing transactions involving commerce….” These arbitration provisions are “pre-dispute” arbitration agreements because they are defined by Part [D] as “provision[s]” “to settle a controversy thereafter arising out of such contract or transaction, or [out of] the refusal to perform the whole or any part” of such contract or transaction….” 9 U.S.C. § 2 (emphasis added). In other words, agreements to submit future disputes to arbitration.

Parts [A] through [E] of Section 2 make the FAA applicable also to written, post-dispute arbitration agreements, that is, agreements to arbitrate existing disputes arising out of “maritime transactions” or “contract[s] evidencing transactions involving commerce….” To that end Part [E] makes Section 2 applicable to “agreement[s] in writing to submit to arbitration an existing controversy arising out of” “maritime transaction,” (Part [B]) “contract evidencing a transaction involving commerce” (Part [C]), or “refusal to perform the whole or any part” of such a contract or transaction. (Part[D]). 9 U.S.C. § 2 (emphasis added).

Arbitration Law FAQs: Are there any Arbitration Agreements Falling Under FAA Section 2 that are Exempt from Chapter 1 of the FAA?

Contracts of Employment 1 Federal Arbitration Act Section 1 — Federal Arbitration Act Section 1

Yes. Section 1 of the FAA provides that “nothing [in the FAA] shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” According to the United States Supreme Court, this exemption applies “only” to “contracts of employment of transportation workers.” Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 119 (2001). But those “contracts of employment” include not only contracts establishing an employer-employee relationship, but also contracts establishing independent contractor relationships. New Prime Inc. v. Oliveira, 586 U.S. ___, slip op.at 6, 7, & 15 (Jan. 15, 2019).

Arbitration Law FAQs: If the Chapter 1 of the Federal Arbitration Act applies, does that mean all FAA litigation falling under Chapter 1 can be brought in federal court?

No. Chapter 1 of the Federal Arbitration Act does not confer an independent basis for federal court subject matter jurisdiction over applications for the relief authorized by Chapter 1. Put differently making an application under the FAA does not raise a “federal question” over which a federal court could, under 28 U.S.C. § 1331, base subject matter jurisdiction.

But that doesn’t mean that federal courts cannot have subject matter jurisdiction over Chapter 1 Federal Arbitration Act proceedings. If the requirements for diversity jurisdiction are met, including complete diversity of citizenship between the parties, and an amount in controversy that exceeds $75,000.00, excluding interest and costs, then a federal court will have subject matter jurisdiction under the diversity jurisdiction. See 28 U.S.C. § 1332.

Does Chapter 1 of the Federal Arbitration Act apply in state court?

Yes. State courts are required to enforce arbitration agreements under Section 2 of the FAA. Basically, they must enforce arbitration agreements falling under the FAA, putting them on the same footing as other contracts. See Kindred Nursing Centers, 137 S. Ct. at 1424.

Most or all states have their own arbitration statutes. New York’s arbitration statute, for example, is codified in Article 75 of the New York Civil Practice Law and Rules (“CPLR”). Depending on applicable state law, state courts may carry out Section 2’s enforcement command using their own arbitration statute’s provisions, even if they are different than those provided by Chapter 1 of the FAA. But if enforcement of the FAA through the provisions of the state’s arbitration code would undermine the purposes and objectives of the FAA, then the offending state arbitration code provisions would be preempted (i.e., superseded) by the FAA to the extent that they conflict with the FAA.

If you are interested in learning more about the Federal Arbitration Act, see here, here, and here.

Photo Acknowledgments:

The photos featured in this post were licensed from Yay Images and are subject to copyright protection under applicable law. L&L added text to the first three photos from the top.

Arbitration Law FAQs: Confirming Arbitration Awards under the Federal Arbitration Act

September 18th, 2018 Arbitration and Mediation FAQs, Arbitration as a Matter of Consent, Arbitration Practice and Procedure, Awards, Federal Arbitration Act Enforcement Litigation Procedure, Final Awards, Judicial Review of Arbitration Awards, Nuts & Bolts, Nuts & Bolts: Arbitration, Small Business B-2-B Arbitration Comments Off

Introduction

Confirming Arbitration Awards 1

Favorable arbitration awards are wonderful things, but they are not self-enforcing. Sometimes the other side voluntarily complies, but if not, there is really not much of anything the arbitrator can do to help.

Arbitrators are not judges and do not have the authority to garnish wages, seize property, foreclose on encumbered property, freeze bank accounts, impose contempt sanctions, and so forth. Parties can delegate to arbitrators broad adjudicatory and remedial authority, but that is relevant only to the nature and scope of their awards, and does not confer power on the arbitrators to enforce their awards coercively.

Confirming Arbitration Awards 2

Chapter One of The Federal Arbitration Act (the “FAA”), and most or all state arbitration statutes, authorize courts to confirm domestic awards in summary proceedings. State arbitration-law rules, procedures, limitation periods, and the like vary from state to state and frequently from the FAA, and state courts may apply them to FAA-governed awards (provided doing so does not frustrate the purposes and objectives of the FAA). And Chapter 2 of the FAA provides some different rules that apply to the confirmation of domestic arbitration awards that fall under the Convention on the Recognition of Foreign Arbitral Awards (the “Convention”), and the enforcement of non-domestic arbitration awards falling under the Convention (i.e., awards made in territory of a country that is a signatory to the Convention.

But let’s keep things simple, and take a brief look at the FAA’s requirements for confirming arbitration awards, as applicable in federal court for domestic awards not falling under Chapter Two of the Federal Arbitration Act in situations where there is no prior pending action related to the arbitration, and there are no issues concerning federal subject-matter jurisdiction, personal jurisdiction, sufficiency or service of process, venue (i.e., whether the suit should have been brought in a different federal judicial district), or the applicability of Chapter One of the FAA (9 U.S.C. §§ 1-16). We’ll also discuss how applications to confirm are supposed to be summary proceedings, why timing of an application is important, and how courts decide them.

What are the Requirements for Confirming Arbitration Awards under the Federal Arbitration Act?

Confirming Arbitration Awards 3

Like most other issues arising under the FAA, whether a court should confirm an award depends on what the parties agreed. Section 9 of the FAA, which governs confirmation of awards, says—with bracketed lettering added, and in pertinent part: “[A] If the parties in their agreement have [B] agreed that a judgment of the court shall be entered upon [C] the award made pursuant to the arbitration, and [D] shall specify the court, then [E] at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and [F] thereupon the court must grant such an order unless [G] the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.” 9 U.S.C. § 9. Items [A] through [D] above each concern party consent as evidenced by the parties’ arbitration agreement.

The key substantive requirements for confirming arbitration awards are thus: Continue Reading »

Posts Tagged ‘New York Convention’

Introduction

Badgerow

A “Jurisdictional Anchor” Post-Badgerow?

SmartSky Caused a Circuit Split Concerning the Viability of Anchor Jurisdiction

SmartSky’s Petition for Rehearing and Rehearing En Banc

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Background

Ninth Circuit Determines the District Court had Subject Matter Jurisdiction to Enforce the Arbitral Summons

The Court’s Arbitral Summons Subject Matter Jurisdiction Conclusion is Further Supported by the Convention’s and Chapter Two’s Structure

The Court’s Arbitral Summons Subject Matter Jurisdiction Conclusion is Further Supported by Section 205, Chapter Two’s Removal Jurisdiction Provision

The Ninth Circuit’s Test for Whether a Federal District Court has Original Jurisdiction under Section 203 over an Action or Proceeding to Enforce an Arbitral Summons

The Ninth Circuit Concludes that the District Court had Subject Matter Jurisdiction over the Arbitral Summons Enforcement Petition

Venue was Proper in the Northern District of California

Convention Venue Statute: FAA Section 204

Whether Section 204 is a Mandatory or Permissive Venue Statute

Contacting the Author

Photo Acknowledgment

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What is a Chapter Two Domestic Award?

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Does an Application to Confirm under Section 9 a Chapter One Domestic Award Require One to File a Full-Blown Law Suit to Confirm an Award?

Confirming Arbitration Awards under Section 9: What Papers does a Party File to Apply for Confirmation of an Award?

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Contacting the Author

Photo Acknowledgment

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Under what Circumstances can a Court Appoint Arbitrators under Section 5 of the Federal Arbitration Act?

Appointing Arbitrators: What Papers Comprise an Application to Appoint an Arbitrator under Section 5?

Please note. . .

About the Author

Photo Acknowledgment

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Does Chapter 1 of the FAA Apply to My Arbitration Agreement?

Assuming that Chapter 1 of the FAA Applies to my Arbitration Agreement, Will a Federal District Court have Subject Matter jurisdiction over FAA Litigation Concerning the Agreement or any Awards Made under it?

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Arbitration Law FAQS: What is the Federal Arbitration Act?

Arbitration Law FAQs: What does Chapter 1 of the FAA do apart from declaring certain arbitration agreements to be valid, irrevocable, and enforceable?

How can I tell if an arbitration agreement or award is governed by Chapter 1 of the Federal Arbitration Act?

Arbitration Law FAQs: Are there any Arbitration Agreements Falling Under FAA Section 2 that are Exempt from Chapter 1 of the FAA?

Arbitration Law FAQs: If the Chapter 1 of the Federal Arbitration Act applies, does that mean all FAA litigation falling under Chapter 1 can be brought in federal court?

Does Chapter 1 of the Federal Arbitration Act apply in state court?

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Introduction

What are the Requirements for Confirming Arbitration Awards under the Federal Arbitration Act?

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