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Comparative Legal Guide, United States: Arbitration

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Comparative Legal Guide, United States: Arbitration Country Author: Arnold & Porter Kaye Scholer LLP The Legal 500 & The In-House Lawyer The Legal 500 Comparative Legal Guide United States: Arbitration Thad Dameris This country-specific Q&A provides an overview [email protected] of the legal framework and key issues surrounding arbitration law in United The Legal 500 States including arbitration agreements, tribunals, proceedings as well as costs, awards Anton A. Ware and the hot topics concerning this country at present. [email protected] This Q&A is part of the global guide to Arbitration. For a full list of jurisdictional Q&As Amy Endicott visit http://www.inhouselawyer.co.uk/index. [email protected] php/practice-areas/arbitration/ 1. What legislation applies to arbitration? Are there any mandatory laws? Because the United States is a federal system, arbitration legislation exists at both the federal and state level. The primary federal statute governing arbitration is the Federal Arbitration Act (the “FAA”). The U.S. Supreme Court has held that section 2 of the FAA (9 U.S.C. § 2), 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). In addition to the FAA, other federal statutes contain arbitration provisions, including for example the Patent Act and the Foreign Sovereign Immunities Act. At the state level, each state has enacted arbitration legislation (e.g., the California Arbitration Act in California), which applies to arbitrations seated in that state (to the extent not preempted by section 2 of the FAA). Practitioners should be mindful of mandatory rules imposed by these state statutes. The majority of state arbitration acts are based on a version of the Uniform Arbitration Act and thus are broadly similar to each other. Because the United States is a common-law system, arbitration law derives not only from these various statutes but also from court decisions interpreting them. 2. Is the 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. (9 U.S.C. §§ 201–08). The United States has made two declarations to the New York Convention which limit its application to (i) awards made in the territory of another State Party to the Convention and (ii) differences arising from a legal relationship which is commercial in nature. 3. What other arbitration-related treaties and conventions is the country a party to? The United States is party to the Inter-American Convention on International Commercial Arbitration (Panama Convention) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). In addition, the United States is party to 20 free trade agreements, including the North American Free Trade Agreement (NAFTA), and the Dominican Republic-Central America Free Trade Agreement (CAFTA-DR), and numerous bilateral investment treaties. These trade and investment agreements provide a limited right for investors from one contracting State to arbitrate claims against the State in which they invested. 4. Is the law governing international arbitration based on the UNCITRAL Model Law? Are there significant differences between the two? The FAA pre-dates and is not based on the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”). The FAA differs from the Model Law with respect to the procedures for appointment of arbitrators, the power of arbitrators to rule on their own jurisdiction, the power of the courts to modify or correct an award, and the grounds for setting aside an award, among other issues. In general, the Model Law provides more detailed and numerous procedures for arbitration, such as the availability of provisional relief and the procedures to be followed in an event of a party default, whereas the FAA leaves much of this to be filled in by the parties’ arbitration agreement and selected arbitration rules. Despite these differences, U.S. courts have interpreted the FAA’s provisions in a manner that by and large is consistent with the Model Law. In addition, many state-level arbitration statutes, such as the Texas Arbitration Act, are based on the Model Law. 5. Are there any impending plans to reform the arbitration laws? No. Consumer advocacy interests concerned about access to justice have led several legislative and regulatory efforts to restrict the use of pre-dispute arbitration agreements in form consumer and employment contracts and in connection with claims for violations of statutory law (e.g., civil rights or antitrust claims), but to date these efforts have been unsuccessful. 6. What arbitral institutions (if any) exist? Have there been any amendments to their rules or are there any being considered? The main arbitral institutions that are headquartered 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) (‘AAA/ICDR’); (ii) JAMS (www.jamsadr.com); (iii) the International Institute for Conflict Prevention and Resolution (CPR, www.cpradr.org); and (iv) the Inter-American Commercial Arbitration Commission (IACAC, www.sice.oas.org). In addition, the International Chamber of Commerce (headquartered in France), and the World Intellectual Property Association (headquartered in Switzerland), maintain branch offices in New York. None of these institutions have amended their rules in the most recent three-year period. 7. What are the validity requirements for an arbitration agreement? Under the FAA, an arbitration agreement must be in writing. To be valid, however, a written agreement need not necessarily be signed or incorporated in a signed contract. For example, the Delaware Chancery Court recently recognized the validity of an arbitration agreement reflected in an exchange of emails between counsel for the contracting parties. Gomes v. Karnell, No. 11814-VCMR (Del. Ch. Nov. 30, 2016). Beyond the writing requirement, the only permissible validity requirements are those imposed upon all contracts by the state law that governs the arbitration agreement (typically the governing law of the main contract or, in the absence of an express choice of law by the parties, the law of the state in which the arbitration is seated). 8. Are arbitration clauses considered separable from the main contract? Yes. A valid agreement to arbitrate remains enforceable notwithstanding a successful challenge to the validity of the contract in which it appears. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967). 9. Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration? The FAA is silent concerning multi-party or multi-contract arbitration. Most arbitral institutions, however, including AAA/ICDR and JAMS, provide a mechanism for joining additional parties or consolidating arbitrations between the same parties under more than one contract. The ICDR provides for the appointment of a special consolidation arbitrator at the request of a party. In addition, some states provide specific procedures permitting courts to order consolidation of cases where the claims arise in substantial part from the same transaction or series of transactions or common issues of law or fact exist. See, e.g., Cal. Code. Civ. Pro., § 1281.3. However, a party may not be compelled to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. Stolt Nielsen S.A. v. Animal Feeds Int’l Corp., 559 U.S. 662 (2010). In such cases, the arbitrator will decide whether class arbitration is permissible. 10. How is the law applicable to the substance determined? The FAA and its state law counterparts generally do not address the issue of choice of substantive law. Arbitral tribunals apply the law or laws chosen by the parties. Where the parties’ agreement is silent, U.S. courts have held that an arbitrator has broad authority to determine the appropriate choice of law rules. In practice, the tribunal often will apply the choice-of-law rules of the law of the seat of arbitration. 11. Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years? Very few categories of disputes are considered non-arbitrable in the United States (e.g., criminal law disputes). Virtually any dispute of a civil or commercial nature can be arbitrated. For example, intellectual property, antitrust, labor and employment, franchise, and civil rights claims all are arbitrable in the United States. 12. Are there any restrictions in the appointment of arbitrators? No. The FAA does not restrict the appointment of arbitrators and state law provisions generally defer to the parties’ selection. 13. Are there any default requirements as to the selection of a tribunal? Where the parties fail to specify a method for appointing arbitrators, the institutional rules governing the arbitration typically provide for default appointments of one to three arbitrators depending on the complexity of the case. If the parties have not selected institutional rules, or if the process selected by the parties otherwise fails to result in appointment of an arbitrator, the FAA and most state arbitration laws permit the court to appoint an arbitrator. These laws, however, do not specify requirements for who may or may not be selected for a default appointment. 14. Can the local courts intervene in the selection of arbitrators? If so, how? Neither the FAA nor state arbitration laws allow for court intervention in the selection of arbitrators except in circumstances where a default appointment is necessary. See responses to questions 12 and 13, above.
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