Thursday, November 6, 2008

Estreicher and Bernasky on Signal of Greater Judicial Review of Arbitration Awards?

Estreicher Sam Estreicher (NYU) (left) and Joseph Bernasky (Jones Day) has published in the New York Law Journal their new piece: Signal of Greater Judicial Review of Arbitration Awards?

Here's a taste:

The U.S. Supreme Court ruled in Hall Street Associates, LLC v. Mattel Inc., that §§10 and 11 of the Federal Arbitration Act (FAA) provide “exclusive regimes for the review provide by the [FAA],” yet it explicitly declined to foreclose “other possible avenues for judicial enforcement of arbitration awards.” Thus, although it seemingly decided a narrow issue before it, the Court’s decision actually raised a series of additional questions.

Such questions include if and how a party could proceed under state law so as to expand, by agreement, the scope of judicial review of an arbitration award. While the U.S. Supreme Court termed it “arguable” that parties could seek “enforcement under state statutory or common law” of an agreement for expanded judicial review of arbitration awards, the California Supreme Court recently held that the “California rule is that the parties may obtain judicial review of the merits [of an arbitration award] by express agreement.” The California high court’s ruling in Cable Connection, Inc. v. DIRECTV Inc. may herald receptivity on the part of state courts to an assortment of arbitral review mechanisms available under state law.

Very interesting and thought-provoking article. It indeed will be interesting to see if more states move in the direction of California in the area of judicial review of arbitration awards.

PS

https://lawprofessors.typepad.com/laborprof_blog/2008/11/estreicher-and.html

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