This country-specific Q&A provides an overview of the legal framework and key issues surrounding arbitration law in the United States (US) including arbitration agreements, tribunals, proceedings as well as costs, awards and the hot topics concerning this country at present.
This Q&A is part of the global guide to Arbitration.
For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/arbitration/
What legislation applies to arbitration in your country? Are there any mandatory laws?
The United States is a jurisdiction that strongly supports arbitration, and its laws reflect an “emphatic federal policy in favor of arbitral dispute resolution.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985).
Because the United States is a federal system, arbitration law is governed both by federal statutes enacted by the U.S. Congress and by state laws enacted by the fifty state legislatures. The primary federal statute governing arbitration is the Federal Arbitration Act (FAA). Provisions on arbitration are also found in the Patent Act and the Foreign Sovereign Immunities Act, among others. The United States is a common-law system, so mandatory arbitration law also derives from court decisions interpreting the governing statutes.
Chapter 1 of the FAA governs domestic arbitrations, while Chapters 2 and 3 implement the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the Inter-American Convention on International Commercial Arbitration (Panama Convention). The U.S. Supreme Court has held that section 2 of the FAA, which provides for the validity, irrevocability, and enforceability of arbitration agreements, is substantive federal law that applies in state courts and supplants inconsistent state laws with respect to all transactions affecting interstate commerce. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995). As a result, virtually any commercial transaction in the United States and certainly any international transaction falls within the purview of federal law, and state law will rarely, if ever, govern. State laws are usually relevant only where the FAA is silent and only to the extent that the state statutes are not inconsistent with it.
Is your country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?
The United States has been party to the New York Convention since its entry into force on 29 December 1970. The New York Convention is codified in the FAA at 9 U.S.C. sections 201–08. The United States applies the New York Convention to awards which (i) arise out of legal relationships which are commercial in nature and (ii) were made in the territory of another state party.
What other arbitration-related treaties and conventions is your country a party to?
The United States is also party to the Panama Convention, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) and the North American Free Trade Agreement (NAFTA).
In addition, the United States is a contracting state to many bilateral investment treaties, which, in defined circumstances, provide for binding arbitral proceedings between one contracting state and individual investors of another contracting state. A list such treaties can be found on the website of the U.S. Department of State (www.state.gov/s/l/treaty/tif/index.htm).
Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?
Although the FAA is not based on the UNICITRAL Model Law on International Commercial Arbitration (Model Law), U.S. case law is generally consistent with the Model Law. Some states have adopted the Model Law, and a number of institutional rules are either based on it or permit its application.
As noted, the FAA and the Model Law are largely analogous. But some differences do exist, most notably with respect to the specific bases for setting aside an award, the arbitral tribunal’s power to rule on its own jurisdiction, as well as some points of procedure for appointment of arbitrators. For example, while the Model Law provides that the arbitral tribunal has the power to rule on its own jurisdiction (the Kompetenz-Kompetenz principle), under U.S. law, the FAA requires courts to rule in the first instance on the jurisdiction of an arbitral tribunal unless there is clear and unmistakable evidence that the parties have agreed to submit the issue of arbitrability to the arbitrator. Such evidence has been found to exist where parties designate arbitration rules that provide that the issue of arbitrability should be decided by the arbitral tribunal. As a practical matter, then, where the arbitral rules of the major institutions are adopted, U.S. law supports the Kompetenz-Kompetenz principle.
Are there any impending plans to reform the arbitration laws in your country?
There are no impending plans to reform the arbitration laws in the United States. The US Congress considered several amendments to the FAA, particularly in order to protect employees and consumers, but those amendments did not succeed, and no substantial changes are expected in the near future.
What arbitral institutions (if any) exist in your country?
The main arbitral institutions in the United States are (i) the American Arbitration Association (AAA, www.adr.org) and its International Centre for Dispute Resolution (ICDR, www.icdr.org), (ii) the International Institute for Conflict Prevention and Resolution (CPR, www.cpradr.org), (iii) the Inter-American Commercial Arbitration Commission (IACAC, www.sice.oas.org), (iv) the International Chamber of Commerce (ICC, www.iccwbo.org) and its branch for services in North America (SICANA), and (v) the Judicial Arbitration and Mediation Services (JAMS, www.jamsadr.com).
The New York International Arbitration Center (NYIAC) was founded in 2013 to advance, strengthen, and promote the conduct of international arbitration in New York. While the NYIAC does not administer arbitrations or publish rules, it offers educational initiatives and hearing facilities (www.nyiac.org).
There are also many regional arbitration centers and for-profit arbitral institutions, and many trade associations for particular industries provide their own dispute-resolution mechanisms.
What are the validity requirements for an arbitration agreement under the laws of your country?
The FAA requires agreements to arbitrate to be in writing. However, agreements do not have to be signed or in any particular form. Written agreements include exchanges of letters, emails and faxes. Agreements to arbitrate can be made through a separate agreement from the main contract or be incorporated by reference.
Are arbitration clauses considered separable from the main contract?
The FAA provides that a valid agreement to arbitrate is independent of the contract in which it is embedded and may survive even where the rest of a contract is held to be invalid. In particular, the US Supreme Court has ruled that a claim that a contract is invalid because it was induced by fraud will be subject to arbitration as long as the allegations of fraud or illegality do not extend specifically to the arbitration clause itself. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–46 (2006).
Can claims under more than one contract be brought in the one arbitral proceeding? Can an arbitral tribunal with its seat in your country consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
Arbitration statutes and court decisions in the United States impose few specific requirements as to the conduct of proceedings. Hence, the conduct of arbitral proceedings in the United States, including the question of consolidation, will be governed almost wholly by the parties’ agreement or the arbitral rules designated therein. It is generally presumed that parties to an arbitration agreement intend that all disputes falling within the scope of the agreement go before the same arbitral tribunal. In addition, if an arbitration agreement specifically provides for consolidation of disputes arising out of more than one arbitration agreement, then courts or arbitrators may order consolidation in accord with the parties’ agreement. There is also precedent for consolidation even where the arbitration agreement does not specifically provide for it, where multiple arbitration agreements with identical clauses cover the same subject matter. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003).
How is the law applicable to the substance determined?
Because there is no mandatory law on this question, arbitral tribunals apply the law chosen by the parties. If an arbitration agreement provides for ad hoc arbitration without specifying the applicable rules, arbitrators will determine the substantive law on the basis of ordinary conflict-of-laws principles.
Are any types of dispute considered non-arbitrable? What is the approach used in determining whether or not a dispute is arbitrable?
Because the FAA contains no restrictions on the disputes that may be arbitrated, the United States permits arbitration in a wider range of disputes than most countries. Indeed, any dispute of a civil or commercial nature between individuals or corporate entities can be arbitrated. Consumer, employment, antitrust, franchise and civil rights claims are all arbitrable in the United States.
However, agreements to arbitrate are subject to the restraints of fundamental public policy. A party resisting the enforcement of an arbitration agreement must therefore demonstrate that Congress specifically intended that the claim not be arbitrable. Gilmer v. Interstate/Johnson Lane Corp, 500 U.S. 20, 26 (1991).
Are there any default requirements as to the selection of a tribunal?
Absent agreement by the parties, the FAA allows courts to appoint arbitrators. Court involvement may be required, for example, where the parties’ agreement does not specify the manner in which arbitrators are to be appointed, or where the particular arbitrator or arbitration forum selected by the parties becomes unavailable.
If the number of arbitrators has not been determined by the parties, the FAA provides for the appointment of a single arbitrator.
Can the local courts intervene in the selection of arbitrators? If so, how?
See answers to Questions 13 and 15.
Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for such challenge?
The FAA does not contain specific provisions for challenging or removing arbitrators. In light of the absence of an express statutory provision and the general pro-arbitration federal policy, courts generally will not hear challenges to an arbitrator’s appointment before the award is rendered. In a proceeding to set aside an arbitral award, however, U.S. courts exercise broad authority to vacate the award on the grounds of partiality, corruption, or misconduct of an arbitrator. But if a party failed to object in a timely manner to an arbitrator’s qualifications or alleged bias before the issuance of the award, the party may be deemed to have waived the challenge.
On occasion, courts have applied general contract principles, such as changed circumstances, mutual mistake, or fraudulent inducement, to reform a contract prior to the award where the appointment procedure specified in the contract would lead to a plainly unsuitable arbitrator.
Typically, pre-award challenges to arbitrators will occur before the appointing authority rather than a court. Institutional rules generally provide for the challenge and replacement of arbitrators on such grounds as partiality or bias, incapacity, failure to participate in the proceedings, failure to meet the qualifications agreed to by the parties, and death. They also provide the specific procedures to be followed, including deadlines for raising a challenge and the procedure for installing a replacement arbitrator.
Are arbitrators immune from liability?
The FAA and other statutes do not expressly govern this issue, but US courts have held that an arbitrator is immune from civil liability for acts related to the arbitrator’s decision-making function. Various court decisions have also extended immunity to arbitral institutions.
Is the principle of competence-competence recognised in your country? What is the approach of local courts towards a party commencing arbitration in apparent breach of an arbitration agreement?
As noted in Question 4, the U.S. Supreme Court has held that an arbitral tribunal may rule on a challenge to its jurisdiction as long as there is “clear and unmistakable evidence” that the parties intended to submit this question to the tribunal. Absent such evidence, a tribunal may make a provisional ruling on jurisdiction, but this ruling is reviewable by a court without deference to the tribunal.
Absent explicit language in the arbitration agreement referring jurisdictional matters to the tribunal, courts must determine whether the agreement contains any other “clear and unmistakable” evidence of an intent to submit the arbitrability issue to the arbitrators. Some courts have held that the explicit incorporation in an arbitration agreement of institutional arbitration rules giving the arbitrator the power to determine his or her own competence is sufficient. Several courts have held that broadly worded arbitration clauses committing resolution of all disputes to arbitration also satisfy the “clear and unmistakable” standard, as long as there is nothing else in the parties’ agreement suggesting a contrary intent.
If it is clear that the parties intended to submit the arbitral jurisdiction question to the arbitral tribunal, then the court should refer the issue to arbitration, and upon an application to enforce the resulting award, review the arbitrators’ decision deferentially in the same manner as any other issue submitted to arbitration. Most arbitration rules provide that an objection to a tribunal’s jurisdiction must be made promptly.
The reviewing court may stay the arbitration pending the resolution of the jurisdictional question. Without such an order, the arbitral tribunal need not suspend its proceedings.
How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods of which the parties should be aware?
The FAA does not contain default rules regulating the commencement of arbitral proceedings. Courts generally find that parties are bound by the dispute resolution procedures to which they have agreed. For example, if parties have agreed to multi-tiered dispute clauses with a period of negotiation or mediation before arbitration, courts typically enforce such agreements.
Limitations, if any, are prescribed by the law governing the substance of the claim. In the United States, the limitations periods for distinct causes of action are governed by state law and thus vary by state. Generally, for the purpose of limitations, an arbitration is considered commenced at the time it is filed. However, this determination may vary based on the provisions of the applicable arbitration rules and substantive law.
What is the applicable law (and prevailing practice) where a respondent fails to participate in the arbitration? Can the local courts compel parties to arbitrate? Can they order third parties to participate in arbitration proceedings?
The FAA does not address the subject of the failure of a party to participate in the arbitration. Under the rules of the major arbitral institutions, however, it is generally recognized that if a party has received sufficient and timely notice of the time and place of the arbitration hearing, but nevertheless fails to be present or to obtain an adjournment, the arbitration may proceed in the party’s absence. U.S. courts have enforced awards rendered in such circumstances.
Where a valid arbitration agreement exists, the FAA requires courts, upon the motion of a party seeking enforcement of the arbitration agreement, to compel arbitration and to stay any court disputes covered by the arbitration agreement. In such a situation, courts may only stay the case; they may not dismiss it.
Before U.S. courts will so compel arbitration or stay litigation in favor of arbitration, however, they must determine that there is a valid and enforceable agreement between the parties to arbitrate. A court will decide the question of validity itself, rather than leaving the matter to the arbitrators. Validity has both formal and substantive components.
Arbitration agreements generally bind only the contracting parties. In limited circumstances, third parties and non-signatories can be bound by arbitration agreements (or enforce them) through traditional principles of contract and agency law, such as assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary, waiver, estoppel, and agency.
In what instances can third parties or non-signatories be bound by an arbitration agreement or award (e.g. by joinder)?
See answer to Question 19.
Certain institutional rules (e.g. the AAA/ICDR International Arbitration Rules) provide for joinder of third parties.
What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?
Most institutional rules grant arbitral tribunals the power to order interim measures, often with broad discretion. Such measures can include injunctions, temporary restraining orders, or orders directing the taking of evidence or preservation of evidence or assets. Many institutional rules also provide for security for costs as an interim measure. Although the U.S. Supreme Court has not decided the issue, courts typically enforce interim measures issued in domestic arbitrations.
Although the FAA gives courts the power to order interim measures only in a narrow category of admiralty or maritime disputes, U.S. courts have found that they have the power to order a broad range of interim measures. Courts have issued preliminary injunctions, attachment of property, ex parte temporary restraining orders, and, in limited circumstances, anti-suit injunctions to prevent a party subject to the court’s jurisdiction from pursuing litigation in breach of a valid arbitration agreement. However, courts will usually deny an application for preliminary relief that could have been submitted to, or was rejected by, the arbitrators themselves.
There is some controversy as to whether U.S. courts have the authority to award provisional remedies in aid of international arbitration. The FAA does not expressly provide for such authority, and judicial decisions have been divided on the issue. But a clear trend has emerged in favor of permitting interim measures in cases subject to the New York Convention.
Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence?
The FAA empowers arbitrators to compel the appearance of witnesses and the production of evidence, and it permits parties and arbitrators to seek judicial enforcement of arbitral tribunals’ discovery orders.
Institutional rules generally provide arbitral tribunals with broad discretion over arbitral procedure, in particular relating to the admissibility and weight of evidence. Most institutional rules require parties to submit written witness statements, or at minimum identify their witnesses and their anticipated testimony subject areas, in advance of the evidentiary hearing, so as to avoid “surprise” testimony.
Both the AAA and the CPR have issued protocols advising arbitrators to strive for simplicity, speed, and cost effectiveness in the arbitral discovery process. International arbitral tribunals and parties frequently refer to the IBA Rules on Evidence as relevant guidelines for the conduct of proceedings in a manner consistent with the flexibility and efficiency parties choosing arbitration typically desire.
Courts show considerable deference to the arbitrators’ determinations regarding the scope of discovery or evidence admitted. Parties generally cannot challenge an arbitrator’s discovery order in court, nor can they obtain a court-issued subpoena seeking discovery upon the failure of the arbitrator to issue one.
Under a separate federal statute (codified at 28 U.S.C. § 1782), a district court may order production of evidence “for use in a proceeding in a foreign or international tribunal.” The statute allows for such orders to be made upon request of the foreign tribunal or upon application of any interested party. The extent to which section 1782 may be available in aid of private arbitration seated outside of the US, however, is unclear, with courts taking divergent views.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your country?
See answer to Question 15.
All U.S. lawyers are bound by the ethical rules of the state in which they practice, including when representing clients in international arbitration. These rules of professional conduct cover topics such as conflicts of interest, confidentiality, communication with represented and non-represented parties, and conduct before a tribunal. The practices required by U.S. rules of professional conduct largely reflect the principles set forth in the IBA Guidelines on Party Representation in International Arbitration.
The rules of the major arbitral institutions, including the AAA’s Commercial Arbitration Rules, require party-appointed arbitrators to meet impartiality and independence standards unless the parties agree otherwise.
U.S. courts have held that the failure of an arbitrator to comply with generally recognized international codes of arbitrator conduct does not automatically require vacatur of an award rendered by that arbitrator. Courts nevertheless find such provisions useful guidance.
How are the costs of arbitration proceedings estimated and allocated?
There are no statutory provisions stating what kinds of expenses are to be considered as costs, nor is there any practical or legal limitation on the recovery of costs. The FAA leaves the award of expenses to the arbitral tribunal, unless costs are specifically defined in the arbitration agreement. The quantification and the allocation of costs will depend on the applicable arbitration rules and the agreement of the parties.
Can interest be included on the principal claim and costs incurred?
The FAA is silent on this issue, but U.S. courts have recognized the authority of the arbitral tribunal to award interest.
Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts?
Generally, arbitrators may issue any remedy consistent with the parties’ agreement. Unless there is express contractual intent to the contrary, a tribunal may award: equitable relief, such as injunctions and specific performance; punitive damages; pre- and post-award interest; and attorneys’ fees and arbitration costs.
What legal requirements are there in your country for the recognition of an award?
The procedure for the enforcement of an award rendered in the United States depends upon whether the award is domestic or non-domestic (arising from an arbitration involving a foreign party or some other significant connection with a foreign country). Domestic awards can only be enforced within one year of issuance. Under the FAA, an award may only be set aside on limited grounds, which largely focus on the integrity of the proceeding rather than the substance of the decision. A court may vacate an award only if (1) it was procured by corruption, fraud, or undue means; (2) partiality or corruption of the arbitrators was evident; (3) the arbitrators were guilty of misconduct in refusing to postpone the hearing, in refusing to hear evidence pertinent and material to the controversy, or engaging in any other misbehavior by which the rights of any party were prejudiced; or (4) the arbitrators exceeded their powers or executed them so imperfectly that a mutual, final, and definite award upon the subject matter submitted was not made. Some courts had recognized “manifest disregard for the law” as an additional ground for vacating an arbitral award: that is, the tribunal knows but chooses to ignore well-defined and clearly governing law. However, recent Supreme Court precedent casts doubt on its continued viability. See Hall Street Associates LLC v. Mattel, Inc., 552 U.S. 576 (2008). U.S. courts are highly deferential to arbitral decisions, so awards will be recognized even when “the arbitrator committed serious error, so long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.” McGrann v. First Albany Corp., 424 F.3d 743, 748 (8th Cir. 2005).
A non-domestic award may be enforced in federal court under the New York Convention within three years of issuance. The award must be enforced unless it is vacated under the FAA (if the award was rendered in the United Sates or under its procedural law) or there are grounds to refuse enforcement under the New York or Panama Conventions.
Can arbitration proceedings and awards be appealed or challenged in local courts? What are the grounds and procedure?
Generally a party cannot appeal an arbitration award to a court; it can only request that a court set aside an award on the narrow grounds available under the FAA discussed in Question 26.
A party can always appeal a judicial decision concerning arbitration, whether it is a decision compelling arbitration or enforcing an award, to a higher court. The procedures for bringing such an appeal are the same as for appeals from other orders and judgments of the original court. Because of the pro-arbitration policy of the FAA, all decisions frustrating an arbitration are immediately appealable.
Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?
Parties cannot waive their rights of appeal or challenge by agreement. Similarly, they cannot expand the grounds of review, as outlined in Questions 26 and 28. See Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008).
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
The Foreign Sovereign Immunity Act (FSIA) generally provides foreign states and their instrumentalities immunity from the jurisdiction of U.S. courts.
The FSIA provides that a court has personal jurisdiction over a foreign state only if an explicit exception to immunity applies and the plaintiff has effectuated service. In particular, the FSIA (Section 105(a) (6)) provides an exception for actions seeking to confirm and enforce awards governed by a treaty or other international agreement in force in the United States calling for recognition and enforcement of arbitral awards (e.g. the New York or Panama Conventions).
Are there rules or restrictions on third-party funders in your country?
None exist beyond the rules applicable in all legal proceedings, such as ethical rules restricting the scope of permissible contingency-fee arrangements between U.S. attorneys and their clients.
Is there a concept in your country providing for class-action or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?
Class-action arbitration exists in the United States, but it is very limited. First, class arbitrations cannot be imposed on commercial parties unless explicitly provided for in an arbitration agreement. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010). Second, contractual provisions waiving the right to class arbitration are enforceable. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). Because standard commercial contracts generally contain such waivers, these decisions have reduced the prevalence of class arbitration.
Is diversity in the choice of arbitrators (e.g. gender, age, origin) actively promoted in your country? If so, how?
Yes. The major arbitration organizations, including the AAA, CPR, ICC, and JAMS, all have initiatives seeking to promote diversity among their arbitrators. For example, the AAA runs a yearlong fellowship called the Higginbotham Fellows Program, which provides training, mentorship, and networking opportunities to emerging diverse arbitrators and other alternative dispute resolution professionals.
Is emergency arbitrator relief available in your country? Is this actively used?
Yes. AAA and other organizations have created procedures for emergency relief, and parties regularly include language in their contracts providing for emergency dispute resolution through arbitration. Further, courts generally recognize such relief, whether it is issued in the form of interim or preliminary measures or, in some cases, final, permanent relief. See, e.g., Yahoo! Inc. v. Microsoft Corp., No. 13-cv-7237, 2013 U.S. Dist. LEXIS 151175 (S.D.N.Y. 2013) (upholding award of “final, permanent” injunctive relief issued by emergency arbitrator appointed by AAA).
Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?
Customarily, commercial arbitrations are confidential, and all of the major organizations take steps to protect this confidentiality by not publishing anything associating parties with awards. Even so, organizations like the AAA do publish summaries of awards that do not mention the parties involved.
Other types of arbitration, such as labor arbitration, are usually not confidential, and awards and other decisions are usually published. ICSID has also taken steps to increase transparency of arbitral proceedings in the context of investor-state dispute resolution.
Are efforts being made by arbitration institutions or local courts to impose strict deadlines for the rendering of awards?
All of the major U.S. arbitral institutions provide a default deadline for the arbitrator to issue an award after proceedings have completed, typically of 30 days. Parties may also specify a deadline in their contracts.
Have steps been taken in your country to publish reasoned decisions on arbitrator challenges and provide more insight into the drivers behind arbitrator selection by institutions?
In the United States, parties typically select their own arbitrators. The major arbitral institutions maintain databases of neutral panels from which parties can select, publish the criteria by which neutrals are deemed qualified for service, and typically offer to assist in selection. The major institutions have also taken steps to provide greater transparency on the resolution of arbitrator challenges, by making such decisions public in certain circumstances.
Are there arbitral laws or arbitration institutional rules in your country providing for simplified procedures for claims under a certain value?
Yes. For example, the AAA’s Commercial Arbitration Rules impose expedited procedures by default for disputes under $75,000. The AAA also has a separate set of rules that apply by default to disputes over consumer contracts (defined as agreements between individuals and businesses for the purchase of personal or household goods with standardized, systematic application of arbitration clauses). These rules provide for a number of simplifications for smaller disputes.
Such rules apply only if parties do not stipulate otherwise in their contracts.