The Enforcement of Arbitral Awards - Chapter 9 - Law and Practice of Arbitration - 4th Edition
Thomas E. Carbonneau is the Samuel P. Orlando Distinguished Professor of Law at Penn State's Dickinson School of Law. Professor Carbonneau is commonly regarded as one of the world’s leading experts on domestic and international arbitration. He serves on the editorial board of La Revue de L'Arbitrage and is the author of ten highly acclaimed books and 75 scholarly and professional articles on arbitration. Professor Carbonneau and was formerly the Moise S. Steeg Jr. Professor of International Law at Tulane University School of Law.
Originally from Law and Practice of Arbitration - 4th Edition
Once the arbitral tribunal renders an award and the administering arbitral institution delivers it to the arbitrating parties, the arbitral process is concluded and jurisdiction reverts to the courts for purposes of compulsory enforcement.1 The enforcement stage of the process can consist of a number of events. The losing party can fully comply with the terms of the award--in which case no compulsory enforcement action is necessary. A party can file an action to modify or correct the award to rectify evident clerical mistakes.2 Also, despite the restraint of functus officio,3 when there is unambiguity or confusion, an award can be remanded by the court to the arbitrators for clarification.4 In the absence of voluntary compliance, within the prescribed one-year time limit,5 an action to confirm or vacate the award can be undertaken.6 The confirmation or vacatur of awards is the final step in the process of arbitral adjudication.
Federal court practice regarding the enforcement of domestic arbitral awards is in keeping with the dictates of the emphatic federal policy favoring arbitration. Most courts acknowledge a presumption in favor of enforcement.7 In fact, the presumption is so strong that it is nearly irrebuttable. It can be defeated only in exceptional circumstances of extreme adjudicatory unfairness, profound arbitrator incompetence, or when the court oversteps its authority and disagrees with the determinations of the arbitrator.8 As a consequence, the courts do not generally apply the FAA § 10 grounds for the judicial supervision of awards with any rigor.9 Vacatur will be ordered only if the arbitrators are corrupt, exceed their powers, or ignore the parties’ fundamental adjudicatory rights or, possibly, the material content of the arbitration agreement. A party opposing the enforcement of an arbitral award cannot use the confirmation proceedings to introduce new issues into the litigation by making counterclaims. In effect, a party cannot make "counterclaims that go beyond the issue of whether the award should be confirmed."10 Three common law grounds supplement the statutory list: Enforcement can be denied if the award reflects a manifest disregard of the law, is arbitrary and capricious or irrational, or violates a well-established statutory public policy.11 Somewhat paradoxically, the elaboration of additional grounds for review in the case law has not created a greater likelihood for awards of vacatur. The common law grounds are basically surplusage that can make the confirmation of awards more onerous.
2. The General Policy for Review
3. The Public Policy Exception to Enforcement
4. Arbitrary and Capricious or Irrational Awards
5. Manifest Disregard of the Law
6. Undue Means
7. Excess of Arbitral Authority
8. Arbitrator Misconduct
9. Evident Partiality
10. Sanctions for Frivolous Appeals
11. Opt-In Provisions
12. The Action to Clarify Awards