Originally from:

Journal of American Arbitration (JAA) - Vol. 1, No. 2

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ARTICLES

“Clear and Unmistakable”: The Third Circuit’s Specificity
Requirement for Contractual Waiver of the FAA
By Heather White

I. INTRODUCTION
Scott Kayser worked as a linehaul contractor for Roadway Package
Systems, Inc. (RPS).1 In 1998, RPS terminated Kayser’s contract for his
alleged failure to comply with the terms of their agreement.2 Pursuant to
the arbitration provision contained in the Linehaul Contractor Operating
Agreement (LCOA) which governed his employment relationship,
Kayser sought reparations through arbitration.3 An arbitrator ruled that
the termination had been unfair and awarded Kayser damages.4 A federal
district court, however, vacated the award on grounds that the arbitrator
had exceeded the scope of his authority.5 Kayser appealed, arguing that
Pennsylvania law governed both his employment contract and the
arbitration interpreting it.6 Under the allegedly applicable Pennsylvania
law, excess of arbitral authority is not grounds for a vacatur of the arbitral
award.7 The Third Circuit Court of Appeals held that parties to an
arbitration agreement may choose rules other than the federal law of
arbitration to govern an arbitration, but that there must be “clear and
unmistakable evidence” of the parties’ intent to do so.8 Roadway
Package Systems, Inc. v. Kayser, 257 F.3d 287 (3d Cir.), cert. denied, 122
S. Ct. 545 (2001).
1.