Welcome to our Gateway Page for information on confirming, vacating, modifying or correcting arbitration awards falling under the Federal Arbitration Act. The Federal Arbitration Act provides three—and only three—remedies that relate to arbitration awards. First, a court may confirm an award, that is, enter judgment upon it. That judgment has the same force and effect— and can be enforced in the same manner as—any other judgment of the court.
Second, in certain limited circumstances, a court may vacate an arbitration award. To vacate an award means to declare it to have no force or effect.
Third, a court may, in certain limited circumstances, modify or correct an arbitration award. This power to modify or correct is ordinarily limited to certain types of technical, mathematical or typographical errors.
This Gateway Page acts as a portal to information concerning litigation to confirm, vacate, modify or correct arbitration awards falling under the Federal Arbitration Act. It begins by providing some general information about Federal Arbitration Act award enforcement procedures. It then provides links to pages on this and other Loree & Loree websites concerning the subject, as well as links to a number of other Loree & Loree online information sources that are pertinent both to arbitration law generally and arbitration-award enforcement specifically.
Confirming, Vacating, Modifying and Correcting Awards: the Federal Arbitration Act’s Award-Enforcement Process
The Federal Arbitration Act’s award enforcement process permits either party to make an application to vacate, modify or correct an award, or an application to confirm it. While a party applying to confirm an award has one year to make its application, a party that wants to vacate, modify or correct one has to assert its grounds within three-months. See 9 U.S.C. § 12. If the party seeking confirmation makes its application after that three-month period elapses, then the opposing party cannot, as a matter of law, assert Section 10’s or 11’s grounds for vacating, modifying or correcting an award, even as affirmative defenses to the application to confirm. See, e.g., Florasynth, Inc. v. Pickholz, 750 F.2d 171, 175-76 (2d Cir. 1984).
Since the deadline for applying to vacate, modify or correct an award is considerably shorter than that for confirming an award, in many cases, parties who are seeking relief from the award make the initial application.
Let’s assume a party timely petitions a court to vacate an award. What will likely then happen is the other party will cross-move to confirm the award.
The burden on the party seeking confirmation is pretty modest. Generally the party cross=moving to confirm will need to show that the parties: (a) entered into a valid and enforceable agreement to arbitrate; (b) consented to entry of judgment on the award; (c) appointed an arbitrator or panel of arbitrators; and (d) submitted the dispute to the arbitrators, who issued the award.
Assuming the party cross-moving to confirm the award has met its modest burden, then under Section 9 of the Federal Arbitration Act the court “must grant” confirmation “unless the award is vacated, modified or corrected” under FAA Sections 10 or 11. 9 U.S.C. § 9 (2013) (emphasis added). That means once the party seeking to confirm the award meets its modest burden, then it is up to the challenging party to establish that the court should vacate, modify or correct the award because one of the grounds for such relief is present.
Now let’s assume that our putative award challenger does not timely apply to vacate, modify or correct the award, and that instead, the party seeking to confirm the award petitions a court to confirm the award after the three-month period for serving a motion to vacate, modify or correct an award has elapsed, but before the expiration of the one-year period for applying to confirm an award. Even assuming our putative award challenger had rock solid grounds for vacating the award, it is time-barred from asserting them.
Unless somehow the putative award challenger can demonstrate that the party seeking confirmation has not met the modest requisites for obtaining confirmation of the award, then it is out of luck. One exception may be if the award interprets the contract in a way that causes it to violate a well-defined, explicit public and important public policy, or if the remedy the arbitrator awards violates the criminal law or requires one of the parties to do so. For example, one would not expect a court to enter judgment on an award that purported to authorize or require the prevailing party to inflict bodily harm on another. See, generally, W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983); United Food & Commercial Workers Int’l Union v. King Soopers, 743 F.3d 1310, 1315 (10th Cir. 2014).
But thankfully, in the real word arbitrators do not order parties to commit violent crimes. And it is not necessarily free from doubt whether a defense based on a less serious violation of a well defined and explicit public policy would be time-barred if not asserted timely as a ground for vacatur under Section 10(a) of the Federal Arbitration Act, but simply as a defense to a motion to confirm.
Applications to Confirm, Vacate, Modify or Correct Awards are Decided in Summary Proceedings According to Summary Procedures
In federal court, and in many or most state courts, applications or petitions to confirm, vacate, modify or correct awards are heard as motions in summary proceedings.They are not supposed to be commenced by the simple filing of a pleading, and doing so is the kind of mistake that can cause problems, including a loss of credibility in the eyes of the court.
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. . . .” Section 6 of the Federal Arbitration Act “provide[s] for. . . procedures” other than those applicable to ordinary civil actions because it requires applications for relief under the Federal Arbitration Act 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 Federal Arbitration Act].” 9 U.S.C. § 6.
An action commenced to confirm, vacate, modify or correct an award is, of course, “[a]n application to the court” under the Federal Arbitration Act, and thus, unless the Federal Arbitration Act otherwise provides, must be “made and heard in the manner provided by law for the making and hearing of motions. . . .”
Subject to applicable procedural and local rules, what courts generally expect to see the award proponent file and serve is not a summons and complaint, but a summons, notice of application or notice of petition, an application or petition, a brief in support (which in many cases need not be longer than a few pages or so) and any affidavits or certifications that may be required (typically an affidavit or certification authenticating the agreement, award and any other pertinent documents). The summons, notice of application and petition should, among other things, inform the other party of the date responding papers are due under applicable motion rules. The petition or application is usually in the form of a pleading (including jurisdictional allegations, allegations about the applicability of the FAA and so forth). The brief should set forth the legal basis for the application, including the basis for federal subject matter jurisdiction and the reasons the FAA applies.
A party opposing a motion to confirm generally should oppose it like it would any other motion, provided there are good grounds for doing so. Assuming there are no issues concerning the timeliness of the application or the existence of an arbitration agreement, then generally the only grounds for opposing the application are those set forth in Federal Arbitration Act Sections 10 and 11, which govern applications to vacate awards and applications to modify or correct them. If the opposing party believes there are such grounds, then ordinarily it will raise them by cross-application or cross-motion.
Judicial Disposition of Applications and Petitions to Confirm, Vacate, Modify or Correct Awards under the Federal Arbitration Act
Courts ordinarily decide them on the papers, sometimes holding oral argument. Occasionally one cross-moving to vacate can make a successful application for some limited discovery, an evidentiary hearing, or both. To do so, however, the party seeking discovery and a hearing must show “clear evidence of impropriety” by one or more of the arbitrators. Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 701, 702 (2d Cir. 1978). Accordingly, the parties must ordinarily establish their competing claims for confirmation and vacatur through their affidavits, documentary evidence and briefs, without any fact development through discovery or an evidentiary hearing. In most cases, that is a relatively simple task for the party seeking confirmation, but a difficult one for the party requesting vacatur.
If there is a cross-motion to vacate (or a cross-motion to confirm if the party seeking vacatur is the first to file), each side usually gets to respond to the other side’s motion or application and submit a reply in support of its own motion or application. If the briefing schedule is properly set, that usually means each side files two sets of papers (the second set is a combined response and reply). If there is no motion or cross-motion to vacate, then the other side simply responds to the motion to confirm and typically the party seeking confirmation gets to file reply papers if it believes them necessary.
The briefing on competing award-enforcement applications can often be completed within two months or less. Once the briefing is complete, the case is submitted (subject to the possibility of oral argument), and the court will decide the competing motions and issue an opinion, order and judgment. (Sometimes local rules call for the parties to submit proposed judgments or the court may request that they do so.)
If the motion to vacate is not particularly persuasive, then typically the party seeking confirmation will receive judgment in its favor in a relatively short period, depending on the state of the assigned judge’s docket. If the motion or cross-motion to vacate has more substance, then it might (or not) take the court longer to decide it.
In a large majority of (but not all) cases, the motion to vacate will be denied and the motion to confirm granted. Appeals to the appropriate Circuit Court of Appeals are not unusual in cases involving the grant or denial of a motion to vacate, but all other things being equal, if the only motion made was one to confirm, and there are no potentially controversial issues presented, then an appeal is unlikely.
If you need to confirm, vacate, modify or correct an arbitration award,
make sure you are represented by counsel. On that score you should either ask the attorney or law firm that represented you in the arbitration to represent you, or retain an arbitration lawyer for that purpose.
In terms of whether you want the lawyer or firm that represented you in the arbitration proceeding to handle the post-arbitration FAA litigation, you’ll need to consider whether they (or others in their firm) are experienced in handling Federal Arbitration Act litigation, and what your fee will likely be. If you believe you might be able to save some money by hiring a reasonably priced arbitration lawyer or firm, then you can either hire one for the limited purpose of assisting your existing counsel with the confirmation proceedings, or handling all of the required FAA enforcement work, including any appeals. One of those two options might be particularly attractive if you are moving to vacate an award—or are moving to confirm an award and anticipate that the other side may have a reasonable basis on which to challenge the award—and want the benefit of an arbitration lawyer who has experience making and opposing such motions. Such a lawyer should, in exchange for a reasonable fee, be able to devise what appears to be the best strategy and present to the court your arguments in a clear, concise and fully-supported manner.
Click on the link above or the image below to learn more about confirming arbitration awards under the Federal Arbitration Act:
Click on the link above or the image below to learn more about vacating arbitration awards under the Federal Arbitration Act:
Click on the link above or the image below to learn more about modifying or correcting arbitration awards under the Federal Arbitration Act:
Click on the link above or the image below to visit this site’s Arbitration Law Gateway page, where you can learn more about arbitration law and the Federal Arbitration Act:
Our Arbitration Law Gateway page features, among other things, links to pages covering the following topics, which you can access directly by clicking on the following links or their adjacent images:
Federal Arbitration Act Provisions Pertinent to Confirming, Vacating, Modifying or Correcting Arbitration Awards
You can find useful information about confirming, vacating, modifying and correcting arbitration awards in Arbitration Award Litigation Practice Blog, the Loree Reinsurance and Arbitration Law Forum, the Federal Arbitration Act Arbitration Agreement Enforcement Litigation Blog and the Federal Arbitration Act Litigation Procedure Blog. Click on the link above or on the image below to learn about and access our blogs:
Arbitration Law Resources Available on Our Other Websites
Our other websites also contain a trove of information pertinent to confirming, vacating, modifying and correcting awards. Click on the links or their corresponding images to access pages on the following topics: