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By Joseph Colagiovanni and Thomas Hartmann of the St. Louis office of
Winning an arbitration award may not immediately end the dispute,
especially when it comes to collecting payment from the losing party.
What can be done to enforce the decision of the arbitrator? The authors
provide a step-by-step approach to giving the award binding effect and
also address motions to vacate, modify or correct.
One of the most commonly asked questions concerning arbitration is:
"What can I do with the arbitration award once it is rendered?" The
short answer is that absent very unusual circumstance's (such as fraud
or corruption in the procurement of the award), an arbitration award can
easily be confirmed as a court judgment, which can then be used to
collect payment from the losing party through judicial enforcement.
This article will discuss the basic steps needed to enforce an
Enforcement procedures for arbitration awards are primarily governed by
the Federal Arbitration Act (Federal Act) and the Uniform Arbitration
Act (Uniform Act).1 If an arbitration case involves interstate commerce
or maritime issues, the Federal Act2 applies.3 Those cases which have
considered the meaning of the phrase "interstate commerce" (as used in
the Federal Act) have universally held that very little "interstate"
connection is necessary 4Accordingly, the Federal Act is likely to apply
to the overwhelming majority of modern day arbitrations. State
arbitration statutes, including those which derive from the Uniform Act,
apply to the extent the Federal Act does not apply or has not preempted
them.5As a general matter, both Acts provide simplified enforcement
procedures which require only that the winning party file a motion in an
appropriate court to confirm the arbitration award. The court must
confirm the award and enter judgment on it unless, upon timely motion of
the unsuccessful party and for one of the very few reasons allowed by
the Federal Act or Uniform Act, the court vacates, modifies or corrects
the arbitration award. There is a presumption in favor of the validity
of the award, and under either Act a party's ability to block entry of
judgment is extremely limited. Once a court enters judgment, relatively
simple procedures exist to execute the judgment and pursue collection
from the losing party's assets.
The first eight sections of the Federal Act discuss: (1) the
controversies to which the statute applies (maritime transactions and
contracts involving inter state commerce; (2) the enforceability of
contractual provisions requiring arbitration (a written agreement to
arbitrate is generally "valid, irrevocable and enforceable"; (3)
remedies when a party fails to arbitrate as required by its agreement;
(4) methods for appointing arbitrators; and (5) certain procedural
matters dealing with arbitration (witnesses; proceedings in admiralty).
In sections 9 through 13, the Federal Act discusses the method by
which arbitration awards are enforced.
An arbitration award can easily be confirmed as a court judgment, which
can then be used to collect payment from the losing party.
The Uniform Act contains provisions concerning: (1) the validity of
arbitration agreements; (2) procedures to compel or stay arbitration;
(3) the appointment of arbitrators; (4) certain procedural rules
regarding the arbitration hearing; (5) calling witnesses and engaging in
discovery; and (6) the format and timing of arbitration awards.
Sections 11 through 18 of the Uniform Act discuss jurisdiction, venue,
and enforcement of the arbitration.
Federal Act: Under 9 of the Federal Act, if the parties to an
arbitration agreement concur that the judgment of a court will be
entered on the arbitration award, and if they specify the court in which
that judgment will be entered, then within one year after the award is
made any party to the arbitration may apply to the designated court for
an order confirming the award.6 Upon such application, the court must
grant the order unless grounds exist to vacate, modify or correct the
award. An action under the Federal Act also may be brought in state
court.7 Therefore, the parties may agree (under the Federal Act) to
confirm the award in either a state court or a federal court (provided
the selected court has jurisdiction).Under the Federal Act, if the
parties specify that the award will be enforced in court but fail to
identify the particular court in which enforcement will occur,
application for enforcement may be made to the federal court for the
district in which the award "was made." Where the arbitrator's award
"was made" is not necessarily the location where the arbitrator signed
or posted the decision. Instead, the courts, in decisions where an
award "was made," will consider not only where the award was actually
written or posted, but which locale has had the most significant
contacts with the contract to arbitrate, the issues in dispute, and the
resolution of those issues, and will also evaluate which jurisdiction
has had the greatest involvement with the parties and the
action.8Uniform Act: In 16 and 17, the Uniform Act provides that an
application for confirmation and enforcement may be made in any court of
competent jurisdiction within the state. According to 17: "The making
of an agreement . . . providing for arbitration in this State confers
jurisdiction on the court to enforce the agreement under this Act and to
enter judgment on an award thereunder." In short, if parties enter into
an agreement to arbitrate in a state that has adopted the Uniform Act
(and the Federal Act does not apply), the award will be enforceable in
that state's courts.
Section 18 of the Uniform Act provides that applications for enforcement
of arbitration awards may be made to a court of the county in which the
arbitration hearing was held. If the hearing is held in another state,
the application is made to a court where the adverse party resides or
has a place of business. If neither of those provisions apply,
application may be made to the court of any county within the state.
The Federal Act is likely to apply to the overwhelming majority of
modern day arbitrations .... An action under the Federal Act may also be
brought in state court.
Federal Act: The proper method for seeking to enforce an arbitration
award under the Federal Act is to file a motion for confirmation in the
appropriate court. That court must grant the motion and enter judgment
on the confirmation order unless the opposing party files a timely
motion to vacate, modify or correct the award.9Section 13 of the Federal
Act designates the papers that a party moving for an order to confirm an
award must file with the clerk when seeking to have judgment entered on
the order. That section requires that the following be filed: (1) the
arbitration agreement; (2) all papers dealing with the selection or
appointment of additional arbitrators or extensions of time; (3) the
award itself; and (4) each notice, affidavit or other paper upon which
the application to confirm the award is based.
Uniform Act: The Uniform Act, like the Federal Act, specifies that upon
submission of an award to a court, the court shall confirm the award and
enter judgment on the award, absent a timely motion to vacate, modify or
correct the award.10Since the Uniform Act itself provides that
arbitration agreements made in the particular state are enforceable in
that state's courts, it does not require that the parties include such a
provision in their agreement. However, because of the wide scope of the
Federal Act and the possibility that interstate commerce may be involved
in some aspect of the agreement between the parties, it would be
prudent for all arbitration agreements or clauses (even those which do
not appear to involve interstate commerce) to include language stating
that the award is intended to be "final and binding and enforceable in
any court of competent jurisdiction".
The Uniform Act does not require that the parties file any particular
documents in connection with an application to confirm, vacate, modify
or correct an award. Section 16 simply requires that all applications
be made by motion consistent with local law or court rule. Upon entry
of judgment, however, the clerk must include, as part of the judgment
roll, documents nearly identical to those required under the Federal
Under the Federal Act, a party seeking to enforce an arbitration award
must do so within one year after the award is made. However, nothing
prevents a successful party from seeking to enforce the award
immediately upon its issuance.11 Unless the unsuccessful party has filed
a proper motion to vacate, modify or correct the award (within the time
required, as discussed below) the court must enter a judgment confirming
The Uniform Act does not specify a time frame within which a party
seeking to enforce an arbitration award must apply for confirmation.
However, separate state statutes of limitation may impose time limits.
More importantly, in light of how broadly courts have construed the
"interstate commerce" phrase in the Federal Act, it would be wise to
seek enforcement as soon as possible, and certainly no later than one
year after the award is issued.
Modifying an Award
In some cases, you may wish to vacate part or all of an award entered
against you or you may wish to ask that an award be modified or
corrected. Both the Federal and Uniform Acts provide for this.
A party's ability to vacate an award is not open-ended. 9 U,S.C 10
states that an order vacating the arbitration award may be entered only
where: (a) the award was procured by corruption, fraud, or other undue
means; b) there was evident partiality or corruption among the
arbitrators; c) the arbitrators were guilty of misconduct by refusing to
postpone the hearing upon sufficient cause, by refusing to hear
pertinent and material evidence or by engaging in any other misbehavior
which prejudiced the parties; or (d) the arbitrators exceeded their
powers or so improperly executed them that a mutual, final and definite
award on the subject matter was not made. Similar bases for moving to
vacate the arbitration award are set forth in the Uniform Act, 12.
Under both Acts, a party may seek to modify or correct an award, but
only where: (a) there is evidence of a material miscalculation of
figures or a material mistake in a description of a person, place or
thing referred to in the award; (b) the arbitrators have awarded on a
matter not submitted to them (unless the matter does not affect the
merits); or (c) there is an error in the form of the award, not
affecting the merits.
In light of these narrow grounds for vacating, modifying or correcting
an award, the scope of judicial review is extremely limited and courts
will not examine the merits of the decision except to the extent that
the award exceeds the agreement of the parties.12 A district court
enforcing an arbitration award does not engage in de novo review of the
award, but may reverse or modify the award only on the grounds specified
in the Act.13 Arbitration awards are presumed to be based on proper
grounds.14Under the Federal Act, the procedures to be used to vacate,
modify or correct the award are found in 12, which provides that
notice of a motion seeking such relief must be served within three
months after the award is filed or delivered. Note that this is nine
months earlier than the time when an enforcement motion must be filed.
If a party fails to file a motion to vacate, modify or correct within
three months and the successful party in the arbitration timely seeks to
enforce the award, the party opposing confirmation and entry of judgment
may not move to vacate, modify or correct the award and may not even
defend the award on grounds that could have been the basis for a timely
motion.15Right is WaivedIn effect, if an unsuccessful party fails to
move rapidly to challenge an award, it waives (or at least risks waiver
of) its right to have a court intervene on its behalf.16 The Uniform Act
requires a party seeking an order vacating, modifying or correcting the
award to file its motion within 90 days of delivery of a copy of the
award. If the basis for the motion to vacate is corruption, fraud or
other undue means, however, the party only need file the motion within
90 days of the time the party knew or should have known of the grounds
for the motion.
Under both the Federal and Uniform Acts, an entry of judgment confirming
an arbitration award will have the same force and effect as a judgment
entered in a court initiated litigation.17 This means that the
successful party in an arbitration can use the judgment confirming the
award to execute against the unsuccessful party's assets (by using all
of the means available to a successful litigant in a judicial
Once the successful party (the "judgment creditor") obtains a judgment
on the arbitration award, that party may wait for the unsuccessful party
(the "judgment debtor) to voluntarily comply or may seek an order of
execution from the court. An order of execution (often in a standard,
prescribed format) directs a sheriff to seize the property of the
debtor. In Missouri, for example, execution orders may be directed to
and executed in any county within the state.18If execution is sought
against property in a state other than that in which the judgment was
entered, the execution will be governed by the other state's statute on
the execution of foreign judgments. Most states have adopted some
version of the Uniform Enforcement of Foreign Judgments Act (Uniform
Enforcement Act) or the Revised Uniform Enforcement of Foreign Judgments
Act, an abbreviated version of the Uniform Enforcement Act.Under 2 of
the Uniform Enforcement Act, the judgment creditor registers the
judgment by filing an authentic copy of it in a court of the other
state. As soon as registration occurs, the court may direct a sheriff
to attach available property of the judgment debtor. Sale of property
cannot occur, however, until the new court enters a final judgment, and
this may require a hearing. Final judgment call be entered
automatically, without a hearing, if the judgment debtor fails to
respond after the court obtains personal jurisdiction or, if personal
jurisdiction is not possible, after the court mails notice of the
enforcement proceedings to the judgment debtor. Under the Uniform
Enforcement Act, a state court can execute the judgments not only of
other state courts, but of federal courts as well.
While winning an arbitration award may not immediately end the dispute,
particularly where the unsuccessful party refuses to voluntarily comply
with the award or seeks to vacate, modify or correct the award,
streamlined rules are in place to enforce awards in federal and state
courts. This makes arbitration a particularly valuable tool for
conflict resolution, especially when compared with the alternative of
litigation in the federal or state court systems.
1 Thirty-four states and the District of Columbia, have enacted some
version of the Uniform Act, including: Alaska, Arizona, Arkansas,
Colorado, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New
Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, South
Carolina, South Dakota, Texas, Vermont, Virginia and Wyoming. If you
want to enforce an arbitration award in a state that has not adopted the
Uniform Act (and the Federal Act does not apply), you should first
consult the appropriate state statute.
2 9 U.S,C. @1 et seq.
3 Pennsylvania Eng. Corp. v. Islip Res. Recovery A, 710 F. Supp. 456,
461 (E.D.N.Y. 1989).
4 See for example, Enameling Corp. v. General Bronze Corp., 434 F.2d 330
(5th Cir. 1970) (contract for Purchase of construction materials
involved interstate commerce where parties were citizens of different
states and transaction necessitated crossing state lines); Petition of
Provost Lefebvre, Inc., 105 F. Supp. 757 (S D.N.Y. 1952) (shipment of
wool within the same state still involved interstate commerce because
instructions for shipment came from outside the state); Starr Electric
Co. v. Basic Construction Co., 586 F. Supp. 964 ([email protected] 1982)
(interstate commerce was involved in a construction contract where
building supplies came from out-of-state suppliers.
5 Bunge Corp. v. Perryville Feed & Produce, 685 S.W.2d 837, 839 (MO.
6 The provisions of 9 in the Federal Act imply that the failure to
state that judgment may be entered on the award may mean that a court
will not enforce it. But even if the arbitration agreement between the
parties does not contain an express provision regarding entry of
judgment, the court in which enforcement is sought is likely to read
such a provision into the agreement. I/S Stavborg v. National Metal
Converters, Inc., 500 F.2d 424, 426-7 (2nd Cir. 1974) (based on the
arbitration agreement, it was clear that parties intended for the
arbitration award to be final and binding and not to be tried de novo
in any court, state or federal). In addition, the parties' adoption of
the American Arbitration Association (AAA) rules (or any other rules of
an arbitration organization which contains language similar to AAA
Commercial Arbitration Rule 47c, stating that 'Parties to these rules
shall be deemed to have consented that judgment upon the arbitration
award may be entered in any federal or state court having jurisdiction
thereof') may be so construed. Dan River Inc. v. Cal-Togs Inc., 451 F.
Supp. 497, 501 (S.D.N.Y. 1978) (although the arbitration agreement
contained no provision on consent to an entry of judgment, incorporation
of an earlier AAA Commercial Arbitration Rule virtually identical to
Rule 47c satisfied 9 U.S.C.9). To avoid any risk, however, at least in
arbitration agreements covered by the Federal Act, a provision that any
award will be "final and binding and may be enforced in any court of
competent jurisdiction" should be included. Once the parties agree that
the arbitration award will be final and binding, they implicitly consent
to enforcement of the award in court. Pennsylvania Eng Corp., supra,
note, 3, at 456, 460 (E.D.N.Y. 1989); Ruby-Collins, Inc. v. City of
Huntsville, Ala, 748 F.2d , 573, 576 (11th Cir. 1984).
7 Bunge Corp., supra, note 5, at 837, 839-40; State ex rel. St. Joseph
Light & Power Co. v. Donelson, 631 S.W.2d 887 (Mo. App 1982); Monte v.
Southern Delaware County Authority, 321 F.2d 870, 874 (3rd Cir. 1963).
8 Motion Picture Laboratory Technicians Local 780, I.A.T.S.E v.
McGregor & Wenier, Inc., 804 F2d 16, 18 (2nd Cir. 1986); Central Valley
Typographical Union, No. 46 v. McClatchy Newspapers, 762 F.2d 741, 744
(9th Cir. 1985); J. V.B. Industries, Inc. v. Federated Dept. Stores,
Inc., 684 F. Supp. 22, 24 (E.D.N.Y 1988). Regardless of the agreement
or the intent of the parties, however, 9 of the Federal Act does not
provide an independent legal or jurisdictional basis for the court to
act. It is only a special venue provision designed to allow the parties
to choose the court in which to enforce their arbitration award, Stroh
Container Co. v., Delphi Industries, Inc., 783 F.2d 743, 47 n.7 (8th
Cir. 1986); General Atomic Co. v. United Nuclear Corp., 655 F.2d 968,
970 (9th Cir. 1981). Because federal courts, unlike state courts, are
courts of limited jurisdiction whose authority to decide a particular
case is constrained by statute, mere agreement by parties to enforce an
award in federal court does not necessarily mean the particular federal
court can act. Before a federal court can act, the parties must show
that the case involves an interpretation or question of federal law (28
U.S.C. 1331) or arises out of a dispute between parties from different
states and involves more than $50,000 (28 U.S.C. 1332). Merely because
the arbitration is under the Federal Act does not provide an independent
basis for federal question jurisdiction. Pennsylvania Eng, Corp, v.,
Islip Red. Recovery A., 710 F. Supp, 456, 460 (E.D.N.Y. 1989). A
similar problem could arise if the parties designate a state court that
does not have sufficient connection with the arbitration to obtain
jurisdiction. Parties to an arbitration agreement should carefully
analyze jurisdictional issues if they intend to designate a particular
federal or state court for enforcement. In drafting an arbitration
agreement or clause, it would be best simply state that the arbitration
award "may be enforced in any court of competent jurisdiction."
9 Supra, note 2, at 9, 13.
10 Uniform Act, 11, 14.
11 RPJ Energy Fund Management v. Collins, 552 F. Supp. 946 (D. Minn.
12 Coast Trading Co. v Pacific Molasses Co., 681 F.2d 1195, 1197-98
(9th Cir. 1982).13 Ibid.; Parsons & Whittemore Alabama Machinery and
Services Corp. v. Yeargin Const. Co. , Inc., 744 F.2d 1482, 1484 (11th
Cir. 1984); Boise Cascade v. United Steelworkers of America, 588 F.2d
127, 128 ( 5th Cir. 1978).
14 Saturday Evening Post Co.,. v. Rumbleseat Press, Inc., 816 F.2d 1191,
1197 (7th Cir. 1987). In rare cases, some courts have subjected
arbitration awards to a generalized abuse of discretion or breach of
public policy standard under either the courts' inherent judicial power
or under a broad interpretation of 9 U.S.C. 10(d), prohibiting
arbitrators from exceeding their powers. Seymour v. B1ue Cross/Blue
Shield, 988 F.2d 1020 (10th Cir. 1993); Jenkins v. Prudential-Bache
Secur., Inc., 847 F.2d 631 (10th Cir. 1988).
15 Sanders Midwest, Inc. v. Midwest Pipe Fabricators, Inc., 857 F.2d
1235, 1237-8 (8th Cir,. 1988) (party may not raise grounds in defense of
motion to confirm awards after the party failed to file a timely motion
to vacate on these grounds). Accord, Florasynth, Inc. v. Pickholtz, 750
F.2d 171, 174-77 (2nd Cir. 1984); Intern U. of Operating Eng. v. Centor
Contractors, 831 F.2d 1309, 1311 (7th Cir. 1987). But see Chauffeurs,
Teamsters, Etc. v,. Ruan Transport Corp., 473 F. Supp. 298 (N.D. Ind.
1979) (where the court concluded that 9 U.S.C. 12 prohibits only the
filing of untimely independent motions to vacate, modify or correct an
award, but does not prevent a party from raising such issues after the
three month period in order to defend against a motion to confirm).
16 Piccolo v. Dain, Kalman & Quail, Inc., 641 F.2d 598 (8th Cir. 1981).
17 Parsons, supra, note 13, at 1482.
18 R.S,. Mo., 513.035.
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