Thomas J. Brewer is a full-time arbitrator and mediator based in Seattle. He may be contacted at email@example.com. Lawrence R. Mills is an arbitrator and mediator with the Seattle law firm Mills Meyers Swartling. He may be contacted by e-mail at firstname.lastname@example.org.
A new study of 158 state and federal cases decided in 2008 in which a party asked a U.S. state or federal court to vacate an award on the ground that the arbitrators exceeded their powers. The results largely conf irm earlier research identifying a few “red flag” fact patterns with elevated risk for vacatur on this ground, and perhaps suggest increased future use of this ground by parties disappointed by the result in Hall Street Associates v. Mattel.
In an earlier study we conducted of a sample of judicial decisions in which a party sought to vacate an arbitration award,1 we found that “exceeding arbitral powers” was the most frequently asserted and sustained of all of the statutory and judicially created grounds to set aside an award.2 To update this research, we reviewed a group of arbitration awards issued over a nine-month period in 2008 in which the claimant alleged that the award should be set aside because the arbitrator exceeded his or her powers. Our findings, particularly when read together with the earlier study, give some real world content to the highly elastic concept of exceeding arbitral powers and highlight several recurring “red flag” areas. In addition to discussing our findings, we discuss the implications of the Supreme Court’s 2008 decision in Hall Street Associates v. Mattel3 on the use of the exceeding powers challenge to awards.