Originally From: Carbonneau on Arbitration: Collected Essays

I. INTRODUCTION

On March 25, 2008, the U.S. Supreme Court rendered its longawaited opinion in Hall Street Associates, LLC v. Mattel, Inc., 128 S.Ct. 1396 (2008). Commentators expected the ruling to resolve the split between the federal circuits regarding the validity and enforceability of so-called opt-in provisions.1 Since the late 1990s, these provisions had become a means by which contracting parties could agree to enhanced judicial review of arbitral awards rendered in arbitrations arising under their agreement.2

At first blush, the Court’s decision did not disappoint expectations. A majority of six justices determined that Federal Arbitration Act (FAA)3 §§ 9-11 were “exclusive.”4 According to the majority opinion, the governing statute provided for “expedited judicial review to confirm, vacate, or modify arbitration awards,”5 and could not be “supplemented by contract.”6 It should be underscored that the Court never specifically held that opt-in provisions were invalid contracts and, therefore, unenforceable agreements. Written in an intricate and understated style, the opinion may be more significant for what it does not say than for what it says. The majority determined only that the FAA grounds coudl not be "supplemented by contract"7 and were "exclusive."8