by Jay McCauley
Every time I ask attorneys to identify the single worst drawback of arbitration, their overwhelming answer is “no appeal.” With Arbitration comes the nightmare of losing for no good reason with no possible fix.
In March of this year, the Supreme Court closed the door to the best solution, finding that contracting parties who choose arbitration lack the power to write appellate review into their arbitration agreements. Hall Street Associates, LLC v. Mattel, Inc. (2008) __U.S.__, 128 S.Ct. 1396.
Just last week, the California Supreme Court, addressing the very same issue under the California Arbitration Act, re-opened the door. Cable Connection, Inc. v. DirecTV.
Both the Federal Arbitration Act and the California Arbitration Act expressly provide that an award may be vacated if it is “in excess of the arbitrator’s powers.” FAA section 10; CAA section 1286.2. The question presented to both courts was whether parties may contractually define those powers by providing that arbitrators who fail to base an arbitral award on the law exceed them. The United States Supreme Court answered: “No, parties may not define those powers.” The California Supreme Court declared the opposite: “Yes, they may.”
A Tale of Two Visions
In Hall Street, the U.S. Supreme Court made the finality of erroneous awards a feature so hard-wired into arbitration’s nature that it cannot be contractually averted. The California Supreme Court, by contrast, makes arbitration a malleable institution whose features may be designed by the contracting parties. For the U.S. Supreme Court, arbitration’s essential virtues are efficiency and finality. For the California Supreme Court, arbitration’s essential virtue is customizability –– efficient for those who seek efficiency and reliable in its outcomes for those who crave predictability.
Last November, before either decision was issued, I mispredicted in a post at the Settle It Now Negotiation Blog that the United States Supreme Court would side with the freedom of contracting parties to protect themselves against lawless awards. I did so not only because a majority of the Circuit courts had thus far gone that way (the First, Third, Fourth, Fifth and Sixth, with the Ninth teetering hopelessly back and forth and the Second not yet heard from) but also because the power of the argument was blindingly evident:
Congress expressly said Courts may vacate when the arbitrator exceeds his power [I said]. It never prohibited the contracting parties from defining what those powers are…. What Congress said it intended was to put arbitration agreements “on the same footing” as all other agreements. That should mean “carry out what the parties contracted for” as long as their contract is neither illegal nor contrary to public policy.
This is why the U.S. Supreme Court’s decision was so disappointing. It didn’t deny contractual freedom on ordinary grounds of illegality or contravention of established public policy, but on the ground that “maintain[ing] arbitration’s . . . . virtue of resolving disputes straightaway” is essential. Apparently the Court feels obliged to protect this one beneficial trait of arbitration against the supposed peril of those who might use arbitration for its other benefits.
For the same reason, the California Supreme Court’s decision is gratifying, particularly as it pauses to note frank mystification by what the U.S. Supreme Court has done. Before upholding the rights of people who are of legal age and sound mind to opt for the rule of law and expect the courts to honor their wishes, the Court noted that “[b]efore Hall Street, we would have had no difficulty concluding that enforcing agreements for judicial review on the merits is consistent with the fundamental purpose of the FAA [the Federal Arbitration Act].” The California Court went on to counter the notion that arbitration has any single essential characteristic — such as finality — explaining,
Review on the merits has been deemed incompatible with the goals of finality and informality that are served by arbitration and protected by the arbitration statutes. However, … those policies draw their strength from the agreement of the parties. It is the parties who are best situated to weigh the advantages of traditional arbitration against the benefits of court review for the correction of legal error.
Id. at 31.
Finding no reason to fear that parties favoring dependability over efficiency imperil any public interest, the California Court found it quite legitimate for “sophisticated parties in high stakes cases” to “desire . . . . the protection afforded by review for legal error” in light of their often unfortunate experience with arbitration awards that “deviated from the parties’ expectations in startling ways.” Rather than harming the institution of arbitration, the Court concluded that “the development of alternative dispute resolution is advanced by enabling private parties to choose procedures with which they are comfortable.” Id.at 33 (emphasis added).
We Dug Our Own Hole
How did we reach the point where a state court, rather than the U.S. Supreme Court, would protect the parties’ freedom to contract for a private adjudication that calls upon the rule of law? I believe that we –– the ADR community –– have done this to ourselves. Endless tracts on the benefits of arbitration tout its primary benefit (compared to litigation) as its efficiency, isolating a common characteristic of many arbitrations and universalizing it into a necessary trait of all arbitrations.
The largest private ADR provider in the world, the American Arbitration Association, saw fit to file an amicus brief in the Hall Street matter, opposing its own customers’ contractual freedom on the ground that arbitration’s fruits cannot properly be anything other than finality and efficiency, even if parties want it to produce something more appealing for them. As the AAA argued,
Permitting enhanced judicial review by contract would not only eviscerate the principle of finality in individual cases, but would likely transform arbitration into traditional litigation. If procedural efficiencies in arbitration were lost, and if courts increasingly intervened in the process, the value of arbitration would inevitably decline.
AAA Amicus Curiae Brief, p. 6
That efficiency and finality are necessary features of arbitration is not a new argument, and it has been made elsewhere than in the courts. Stephan Ware, the most insightful intellect in the field of Arbitration today, brilliantly decries the habit of many fellow ADR academicians to reify arbitration into an institution having necessary features apart from the contracts that create it. Responding to ADR guru Edward Brunet’s attempt to inventory the “core values of arbitration,” Ware says:
I do have one quibble with [that approach]. Unlike Professor Brunet, I do not see secrecy, arbitrator expertise, adjudication efficiency or finality as necessary values of arbitration. I see autonomy as the value that transcends those other values. Because arbitration law gives the parties autonomy, they can choose to have their arbitration be secret or not. Because arbitration law gives the parties autonomy, they can choose to have their arbitration use quick and efficient procedures or not. . Because arbitration law gives the parties autonomy, they can chose to make their arbitration final or – by having an appellate arbitration panel or expanding the grounds for vacatur – not.
It is certainly true that most parties to arbitration agreements choose to use their autonomy to advance the values of secrecy, arbitrator expertise, adjudicatory efficiency and finality. But, in my view, that does not show that these are core values of arbitration; it shows that these are core values of most of the parties who agree to arbitrate.
Brunet, Speidel, Sternlight and Ware, Arbitration Law in America, a Critical Assessment, Cambridge University Press, 2006, p. 339
The Solution is Simple — Leave the Federal Arbitration Act in the Dust
What are the implications of the California Supreme Court rejecting this limited view of arbitration? Quite simply: it reestablishes a critically needed arbitration vehicle that the United States Supreme Court had eliminated. The addition (or retention) of this vessel to the ADR fleet does not impair the rest. Nor is our ability to use this vessel undermined by the United States Supreme Court’s limiting interpretation of its own arbitration institution –– that created by the Federal Arbitration Act. That Act does not preempt the States’ ability to go in the opposite direction from the FAA, even under the auspices of identically worded legislation. Counsel concerned about preserving judicial review do not have the contractual freedom to provide for such review in contacts governed by the FAA, but they absolutely have the contractual freedom to specify that their contracts are not governed by the FAA.
The upshot: For those with California disputes, or those in states whose courts have taken their own arbitration acts in the same direction California has taken its, or for those in states whose choice of law rules permit a binding contractual provision that California Law applies (procedural geeks will know this is not so far fetched; interestingly, the Cable Connection case itself began with a motion to compel proceeding in Oklahoma) the solution is simple: draft the arbitration clause to specify that the arbitration shall be governed by the law of an appropriate friendly state [e.g. the California Arbitration Act]. Otherwise stated: Leave the Federal Arbitration Act in the dust.
The irony: This is exactly the opposite of the advice sensible counsel would have given last year for those concerned with finding refuge from erroneous awards. Last year, four appellate courts in California had said you can’t contract for review, while the majority of the Federal Circuit Courts had said you can. Even those circuits that did not allow the parties to agree to review could give the cold comfort of potential reversal for extremely bad awards under the “manifest disregard” doctrine, a doctrine that has been expressly rejected by the California Supreme Court applying the California Arbitration Act.
California the New Delaware?
Decades ago, Corporations found a refuge from the anarchy of irrational or incompetently administered corporate law when the tiny state of Delaware turned itself into a Mecca for such matters. It is not far-fetched to envision California as an analogous Mecca for Arbitration. In this fertile ground, arbitrations reviewable on the merits –– a species of arbitration the U.S. Supreme Court viewed as a platypus too weird to exist –– will be permitted to thrive.
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