ArbitrationNation Roadmaps (primers)

So you’ve got an arbitration award, what next? In other types of civil cases, the Federal Rules of Civil Procedure (Rules) control service, and they have greatly reduced the role of U.S. Marshals in serving parties. See Fed. R. Civ. P. 4(c). But enter the Federal Arbitration Act § 9 and § 12 (FAA). When a party seeks to confirm, vacate, or modify an arbitration award, § 9 and § 12 say that a nonresident party must be “served by the marshal of any district within which the adverse party may be found in like manner as other process of the court.” Which set of requirements controls here?

Since adequate service is necessary for the court to have personal jurisdiction, the question of service has been litigated in a few district courts, but no federal appellate courts. See Logan & Kanawha Coal Co.v. Detherage Coal Sales, LLC, 789 F. Supp. 2d 716, 718 (2011) (chronicling the courts that have analyzed the issue). Some courts, like the D.C. District Court in VentureForth Holdings LLC v. Joseph, have found that service consistent with the Rules also satisfies FAA § 9 and § 12. Those courts rely on the final phrase of § 9 or § 12 that says, “in like manner as other process of the court.” They read that phrase as indicating that arbitration award confirmation or modification service should follow the same rules as other civil suits. They derisively dismiss the requirement in §§ 9 and 12 as an artifact or an anachronism.

However, some courts, like the Southern District of West Virginia in Logan & Kanawha v. Detherage Coal Sales, require service by U.S. Marshal. The first and primary argument for those courts is that the plain language of the FAA §§ 9 and 12 requires service by U.S. Marshal. When confronted with the apparent tension between the Rules and the FAA, they point to the fact that Congress has not yet repealed the marshal requirement in the FAA even if the new Rules reduce the role of U.S. Marshals. The Rules, in fact, still retain the option of using U.S. Marshals to serve other parties, so a court could order service by U.S. Marshal without violating Rule 4.

All in all, there are some district courts—but not circuit courts—talking about the potential conflict between the service requirements in the Rules and the FAA, and they do not all agree. There is no circuit law on it yet, but at least some of the district courts seem content to allow Congress’ anachronism to control current outcomes. The safest bet for any party seeking to confirm, vacate, or modify an arbitration award in federal court is to use a U.S. Marshal for service, or to get an express waiver of that requirement from the opposing party.

ArbitrationNation thanks Claire Williams, a law student at the University of Minnesota Law School, for researching and drafting this post.


A nonexhaustive list of courts not requiring marshal service

  • VentureForth Holdings LLC v. Joseph, 80 F. Supp. 3d 147, 148 (D.D.C. 2015) (“[T]his Court holds that service of a nonresident complies with § 9 of the FAA if service is provided in accordance with Rule 4 of the Federal Rules of Civil Procedure.”)
  • United Cmty. Bank v. Campbell, No. 1:10 CV 79, 2011 WL 815684, at *2 (W.D.N.C. Mar. 1, 2011) (The Court finds that the Bank properly effected service pursuant to Rule 4(e).)
  • Elevation Franchise Ventures, LLC v. Rosario, No. 1:13-CV- 719 AJT/JFA, 2013 WL 5962984, at *4 (E.D. Va. Nov. 6, 2013) (“Service of process upon an individual is governed in this court by Fed. R. Civ. P. 4(e)(1) . . . .”)
  • Hancor, Inc. v. R &R Eng’g Prod., Inc., 381 F. Supp. 2d 12, 15 (D.P.R. 2005) (relying on Reed & Martin, Inc. v. Westinghouse Elec. Corp.)
  • Litigants in the Second Circuit should be aware of Reed & Martin, Inc. v. Westinghouse Elec. Corp., 439 F.2d 1268, 1277 (2d Cir. 1971). In it, the Second Circuit analyzed the same phrase “in like manner” that courts point to when arguing that service in accordance with Rule 4 is sufficient. The court held that “[t]he phrase ‘in like manner as other process of the court’ found in § 9 of the Arbitration Act refers to Fed. R. Civ. P. 4 on the accomplishment of appropriate service, not to Fed. R. Civ. P. 12(a). . . .” While this quote appears to support service in accordance with the Rules, there are two big caveats. First, the court was addressing an issue on which the FAA is silent (time to answer). Second, this case was decided in 1971 when Rule 4 required “[s]ervice of all process shall be made by a United States marshal . . .” so at the time there was no conflict between the Rules and the FAA and therefore the court could not have addressed the current tension between the FAA and the Rules.


A nonexhaustive list of courts requiring marshal service:

  • Johnson v. Drake, No. 3:16-CV- 1993-L, 2017 WL 1173275, at *6 (N.D. Tex. Mar. 30, 2017) (“[C]ourts cannot simply disregard the plain language of 9 U.S.C. § 9 . . . .”)
  • PTA-FLA, Inc. v. ZTE USA, Inc., No. 3:11-CV- 510-J- 32JRK, 2015 WL 12819186, at *6 (M.D. Fla. Aug. 5, 2015) (“[S]ervice on nonresidents must be made via marshal. . . “)
  • Logan & Kanawha Coal Co. v. Detherage Coal Sales, LLC, 789 F. Supp. 2d 716, 722 (S.D.W. Va. 2011)
  • Nu-Best Franchising, Inc. v. Motion Dynamics, Inc., No. 805 CV 507T27TGW, 2006 WL 1428319, at *3 (M.D. Fla. May 17, 2006) (“Plaintiffs were required to serve notice through the United States Marshal.”)
  • Int’l Union of Operating Engineers Local 825 Employee Benefit Funds v. Getty Contracting LLC, No. CIV. 2:14-7799 KM, 2015 WL 4461512, at *2 (D.N.J. July 20, 2015) (“If it is a nonresident of New Jersey, Getty must be served via the U.S. Marshal in its home district.”)
  • Dobco, Inc. v. Mery Gates, Inc., No. CIV. 06-0699 (HAA), 2006 WL 2056799, at *2 (D.N.J. July 21, 2006) (“Rather, Dobco had an obligation to have Mery Gates served by a marshal, as the strict language of the statute provides.”)

I am celebrating my fifth anniversary of blogging by publishing one listicle per day this week, and today is the last one (sniff, sniff). To recap: Monday’s topic was the five biggest surprises in arbitration law; Tuesday’s was the five states most hostile to arbitration; Wednesday’s was the five arbitration cases lawyers really ought to know; and Thursday’s was the five biggest surprises in the arbitration process.  Today’s topic might be the most practical: five things you should have in your arbitration clause.

Five Things That Should Be In Your Arbitration Agreement

  1. A clear statement of the “scope” of the arbitration agreement — what kinds of disputes the parties are willing to arbitrate.
  2. The rules that will govern the arbitration.  The rules of the arbitration impact every aspect of the proceeding, including the court’s jurisdiction over issues of arbitrability.  So, identify the rules.  And please make sure they are rules that actually exist somewhere.
  3. The location of the arbitration hearing.  Two reasons for this: first, it avoids haggling over which cities are most convenient after a dispute has arisen; and second, many courts tie court venue (for compelling arbitration, etc.) to the location of the arbitration hearing.
  4. A limitation period.  Many states have held that their general statutes of limitation do not apply to arbitration proceedings.  If you want to ensure that there will be some deadline for claims, insert one into the arbitration agreement.
  5. A severability provision.  Under the FAA, courts are supposed to determine whether an arbitration agreement is enforceable without regard to any other terms in the larger contract.  Therefore, if you want to give the court latitude to simply strike any unenforceable portions of the arbitration agreement without striking the arbitration agreement altogether, the severability clause needs to be right in the arbitration agreement.

I hope you have enjoyed this series of listicles as much as I have!  Next week I may have to do “five new cases I should have blogged about instead of just sending out listicles…”

I am celebrating five years of blogging by publishing one “listicle” per day this week.  Monday, the topic was the five biggest surprises in arbitration law; Tuesday it was the five states most hostile to arbitration; Wednesday it was the five arbitration cases lawyers really ought to know.  Today, we leave case law behind and talk about the process of arbitration itself.  What are the biggest surprises for parties and advocates who find themselves in arbitration?

Five Biggest Surprises In The Arbitration Process

  1. No need for a “complaint” with numbered paragraphs or lengthy recitations to start the ball rolling.  (To start an arbitration proceeding, a claimant usually just needs to complete a form identifying the parties, the claim amount, and the type of dispute, with a copy of the arbitration agreement attached.  No Twiqbal standards, no formal service.)
  2. Parties are not obligated to keep arbitration proceedings confidential.  (If confidentiality is important to your client, ask the arbitrator(s) for a protective order.  Or insert a confidentiality requirement in your agreement.)
  3. Counsel may ask follow-up questions about potential arbitrators.  (Did the potential arbitrator disclose something that sounds fishy, but you don’t have enough information to know if it is fishy?  Come up with some follow-up questions and see if the answers bring any clarity.)
  4. Neither the rules of civil procedure nor the rules of evidence necessarily apply in arbitration.  (Only the rules of the arbitration administrator apply.  That means no one is entitled to serve requests for admission, or take depositions, or even to exclude hearsay from the record, unless those rules allow it or the arbitrator has given her blessing.)
  5. You can tailor the arbitration process to fit your case.  (This is a positive surprise.  Would your case benefit from bifurcation? Or having most witnesses just give written statements? Or having the experts arm-wrestle?  Go ahead and ask the arbitrator for it!  If you can show it would lead to an efficient resolution of the dispute, you just might get your wish.)

Tomorrow is the last listicle in the series!  I can’t decide whether to focus on five things to put in your arbitration clause, the five most read posts, or five things to love about arbitration…  Feel free to send me your vote.

I am celebrating five years of blogging by publishing one “listicle” per day this week.  Monday, the topic was the five biggest surprises in arbitration law; Tuesday it was the five states most hostile to arbitration.  (None of those states have called me to complain yet…)  Today, it is the five arbitration cases lawyers really ought to know.  I don’t care if you are a rural solo practitioner who handles a bit of everything or a transactional lawyer or a general counsel who just handles exports, arbitration has become a significant part of our system of justice.  It is likely that every lawyer will bump up against it at some point in their career.  When (or better yet, before) that happens to you, here are the five cases you really should read.

Five Arbitration Cases You Should Know

  1. Rent-A-Center, West v. Jackson, 130 S. Ct. 2772 (2010).  This case is the culmination of the “severability” doctrine, which explains whether a litigant’s challenge to enforceability should be heard in arbitration or in court.  For the uninitiated, reading this case is like reading that Bruce Springsteen is actually an alien.  It is that counter-intuitive.
  2. BG Group, PLC v. Republic of Argentina, 134 S. Ct. 1198 (2014).  This case tries to explain which of the other potentially dispositive issues get decided in arbitration and which are decided in court (conditions precedent, waiver, scope, etc).  It also gives some guidance as to the deferential standard of review for arbitrator decisions, and shows the importance of the rules parties chose to govern the arbitration.
  3. AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011).  This case establishes that a state statute or line of cases is preempted if it “stands as an obstacle” to the objectives of the Federal Arbitration Act.  It’s a squishy standard, but you need to know it’s there, because it potentially preempts a lot of state law (that you would otherwise rely on to invalidate the arbitration agreement).
  4. Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013).  This case shows how difficult it is to have an arbitration award vacated, especially if the argument boils down to: the arbitrator just got it wrong.  Even “grave error” is not enough.
  5. Citizens Bank v. Alafabco, Inc., 123 S. Ct. 2037 (2003).  This case drives home the reach of the Federal Arbitration Act.  It can apply in state and federal courts, and it can apply when both parties are residents of the same state.  Just assume it always applies.

Of course, these cases are just the tip of the iceberg.  If you have a real arbitration dispute, you will need to read many more cases than these.  But, you have to start somewhere, and these are a solid starting place.  Watch for tomorrow’s listicle!

I am celebrating five years of blogging by publishing one “listicle” per day this week.  Yesterday, the topic was the five biggest surprises in arbitration law.  Today, it is the five states where I would not want to argue in favor of arbitration — either compelling arbitration or confirming an award.  In other words, these are the five states I view as most hostile to the case law that SCOTUS has developed under the Federal Arbitration Act.

By the way, don’t think this was an easy list to put together.  In the first eight months of 2016 alone, I have blogged askance at arbitration decisions from the highest courts of Arkansas, North Dakota, South Carolina, Georgia, New Hampshire, New Jersey, West Virginia, Kentucky, Montana and Hawaii.  And I have declined to blog about plenty of others.  (Even I find some arbitration decisions just not that interesting.)   But, after much deliberation, here are the top five, with links to posts about recent opinions that helped earn the states a spot on the list.

The Five States Most Hostile To Arbitration

  1. Kentucky
  2. West Virginia
  3. New Jersey
  4. Hawaii
  5. Montana

(You expected to see California?  Sorry, it’s had a change of heart.)

Stay tuned for tomorrow’s listicle!


Do you hear the corks popping, friends??  You should, because the imaginary champagne was just opened and the balloons have been released to the far corners of the internets in honor of ArbitrationNation’s FIFTH ANNIVERSARY!  At the end of this week, I will have published 253 posts over the course of five years.

Taking inspiration from other social media sites, I am celebrating this blogiversary by publishing one “listicle” per day this week, five in all.  Today, the topic is the five biggest surprises in arbitration law.  Full disclosure — this is not based on any statistically valid survey or data.  (Neither are any other listicles you click on…)  But, it is based on the almost daily emails I receive from lawyers or parties in arbitration, asking me for help.  And, this list is about surprises in the law surrounding arbitration, not the process of being in arbitration itself.  (That’s for another day.) Caveats out of the way, here we go.

Five Biggest Surprises In Arbitration Law

1.The Arbitrator (and not a court) likely has authority to decide whether the parties must arbitrate and whether their contract (as a whole) is valid (Buckeye Check Cashing; Rent-A-Center).  (Yes, you can be forced to arbitrate based on a clause within an otherwise unenforceable contract.)

2.Piecemeal litigation is “A-Okay”; efficiency is not the goal of the arbitration acts (KMPG v. Cocchi).

3. The bases for “appeal” of an arbitration are incredibly narrow (9 U.S.C. 10; Sutter), so the award is generally the final word.

4. Parties must preserve any bases for vacatur by raising them with arbitrator (if those bases were known or could have been known) (Dealer Computer Services).  (In other words, if you may want to appeal your arbitration award based on arbitrator bias, you first have to tell the arbitrator you believe she is biased…)

5. There is still significant judicial hostility to arbitration.  Even when you are arguing for arbitration, and the case law is on your side, a court may still find a way to retain jurisdiction or vacate the award.  (Examples here, here, and here, and almost every week on this site.)

Watch for a new list tomorrow!

What is “arbitration”? Although courts often use and apply the word, rarely do they stop to define it.  While the FAA concerns agreements to “settle by arbitration a controversy,” the FAA does not define “arbitration,” leaving the question to the courts. Lacking definitive guidance from the U.S. Supreme Court, two lines of cases have developed among the U.S. Courts of Appeals.

The split can be traced back to AMF Inc. v. Brunswick Corp., where bowling lane companies agreed to submit disputes about advertising to a third party to determine whether the claims in the ads were supported. 621 F. Supp. 456 (E.D.N.Y. 1985). After ads from Brunswick claimed “high tech” superiority over AMF’s wooden lanes, the court set out to resolve whether the process detailed in the agreement was “arbitration.” The key language from the case is that the “essence of arbitration” is “to have third parties decide disputes.” The court concluded that the parties had agreed to arbitrate because at least one controversy — the factual issue of whether the advertising claim was supported — would be “settled.” “Arbitration” need not end all controversy between the parties, and with the factual dispute resolved it was “highly likely” that the litigation based on that factual dispute would also be resolved.

Will it resolve the dispute?

The first line of case law stemming from AMF emphasizes the likelihood of parties to resolve their disputes through a given dispute resolution process. The Third, Ninth, Fourth, Tenth, and Second Circuits take this view, each with their own twist. In Harrison v. Nissan Motor Corp. in U.S.A., the Third Circuit narrowed the AMF holding slightly, reviewing an arbitration provision that expired after 40 days and holding that the process agreed to was not arbitration because the parties did not agree to see the dispute “through to completion.” 111 F.3d 343 (3d Cir. 1997).

The Ninth Circuit expanded Harrison’s definition in Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205 (9th Cir. 1998), holding that an agreement that did not “explicitly permit one of the parties to seek recourse to the courts” was still arbitration, even though it was non-binding. The Fourth Circuit stretched Harrison’s definition even further in United States v. Bankers Ins. Co., holding that an agreement that permitted a federal agency to unilaterally reject a third party’s determination qualified as arbitration. 245 F.3d 315 (4th Cir. 2001). The court reasoned that because the agency would presumably approve an arbitration award it found favorable, the dispute resolution process would not be a “futile exercise.”

Seemingly rejecting the more expansive views of the Ninth and Fourth Circuits, the Tenth Circuit held that an agreement to accept a series of appraisals to resolve a purchase price dispute was not an agreement to arbitrate in Salt Lake Tribune Publ’g Co., LLC v. Mgmt. Planning, Inc., 390 F.3d 684 (10th Cir. 2004). Relying heavily on Harrison, the court found that the appraisal at issue would only fix the purchase price under certain circumstances, and therefore would “not necessarily settle a dispute” between the parties. The Second Circuit took a similar approach in Bakoss v. Certain Underwriters at Lloyds of London Issuing Certificate No. 0510135, emphasizing precedent requiring a binding resolution for arbitration, and holding that a doctor’s “final and binding” evaluation of a disability diagnosis met the definition. 707 F.3d 140 (2d Cir. 2013).

Does it look like “classic” arbitration?

The second line of AMF-derived cases focuses less on a dispute resolution process’s likelihood of settling disputes, and instead looks for a set of procedural features indicative of “classical arbitration.” In Fit Tech, Inc. v. Bally Total Fitness Holding Corp., the First Circuit identified several “common incidents of arbitration,” including a binding resolution, an independent adjudicator, substantive standards, and an opportunity for each side to present its case. 374 F.3d 1 (1st Cir. 2004). Finding that the parties’ dispute resolution process had all of these features, at least with respect to some of their disputes, the court held that it qualified as arbitration.

The Eleventh Circuit identified the circuit split on the definition of arbitration, but did not see a real disagreement. Advanced Bodycare Sols., LLC v. Thione Int’l, Inc., 524 F.3d 1235 (11th Cir. 2008). The court concluded that submitting a dispute to a third party for a binding decision is “quintessential classic arbitration,” and identified four factors used to decide whether a dispute resolution method is arbitration, expanding on the “common incidents of arbitration.”

The Sixth Circuit provided the most comprehensive definition of arbitration of all the AMF-derived appellate cases in Evanston Ins. Co. v. Cogswell Properties, LLC, 683 F.3d 684 (6th Cir. 2012). In building its definition of arbitration, the court cited Fit Tech factors in support of the proposition that the definition of arbitration depends on “how closely it resembles classic arbitration.” The court observed that a central feature of classic arbitration is a third party empowered to render a decision settling the dispute between parties, mirroring the reconciliation approach taken in Advanced Bodycare. Citing Harrison, the court also observed that arbitration requires parties to submit to the process “through to completion.”

Why does this matter? 

Many contracts provide that some third party will decide a dispute between the parties.  For example, a third party appraiser will determine if a change in rent is fair, or a CPA will determine the buy-out price for a departing shareholder.  But, if those provisions are treated as arbitration by the court, that means they can be strictly enforced pursuant to Section 2 of the FAA, and it means the third party’s decision is entitled to great deference, pursuant to Section 10 of the FAA.  That may not have been what the parties intended when they were drafting.


Additional reading:

Definitional Avoidance: Arbitration’s Common-Law Meaning and the Federal Arbitration Act by Niall Mackay Roberts provides an in-depth look at the evolving definition of arbitration among the courts over time

The Committee on International Commercial Disputes examines the definition of arbitration and a host of other issues in the expert determination context in its 2013 report, Purchase Price Adjustment Clauses And Expert Determinations: Legal Issues, Practical Problems And Suggested Improvements.


ArbitrationNation thanks Justin Sharp, a law student at Northwestern University School of Law, for researching and drafting this post.  And asks you to consider nominating the blog for the ABA’s Blawg 100 list, by following this link (the URL is!  Last request. 

Statutes of limitations provide peace of mind for many attorneys and clients, knowing previous conduct cannot lead to liability after a prescribed time period. But, do statutes of limitations apply to arbitration proceedings? The answer is: not necessarily.  Because of that, advocates and parties need to know when statutes of limitation may apply as well as how they can revise their arbitration clauses to avoid this confusion.

The benefits of applying the statute of limitations to arbitration procedures are clear. However, it is often unclear whether a state will apply a time bar to arbitration actions. Neither the Federal Arbitration Act (FAA) nor the Revised Uniform Arbitration Act (RUAA) has a statute of limitations, so the arbitrator must look to state law to apply a time bar. When drafting the arbitration clause, or preparing for arbitration, there are three sources to review to determine whether a statute of limitations applies:

  • The state’s relevant statute of limitations, to see if it expressly applies to arbitration proceedings;
  • The case law in the relevant jurisdiction, deciding whether the statute of limitations applies in arbitration; and
  • The Uniform Commercial Code.

1. State Statutes Expressly Applying the SOL to Arbitration Proceedings

Only three states have passed laws expressly applying the statute of limitations to arbitration. These states are New York (N.Y. C.P.L.R. § 7502 (McKinney 2016)), Georgia (Ga. Code Ann. § 9-9-5 (2016)), and Washington (Wash Rev. Code § 7.04A.090(3) (2016) (overturning Broom v. Morgan Stanley DW Inc., 236 P.3d 182 (Wash. 2010))). All three states prohibit an arbitration action if the same claim could not be brought in court.

Washington’s statute, for example, reads, “A claim sought to be arbitrated is subject to the same limitations of time for the commencement of actions as if the claim had been asserted in a court.” Clearly, these statutes of limitations apply to arbitration proceedings governed by the state law of those states.

2. State or Federal Decisions Regarding Whether to Apply the SOL to Arbitration

If the relevant statute does not explicitly apply to arbitration proceedings, it is important to see how the common law has treated this question. Some state courts have already decided whether arbitrations should have a limitations period. These states include: California, Connecticut, Florida, Idaho, Indiana, Maine, Massachusetts, Michigan, Minnesota, North Carolina, and Ohio. All of these states, except Florida, do not apply the statute of limitations to arbitrations.

The courts’ rationale for refusing to apply the time bar usually notes the simplicity of arbitrations compared to judicial proceedings. One purpose of arbitration is quick and simple resolutions without as many formal rules. Many courts view the statute of limitations as one of the formal, rather than substantive, rules that is lost when deciding to arbitrate.

For example, the court in NCR Corp. v. CVS Liquor Control, Inc., 874 F. Supp. 168, 172 (S.D. Ohio 1993) found the relevant statute of limitations did not apply to arbitration claims. It reasoned the “statute of limitations is to bar an action at law, not arbitration.” Similar to other decisions on this issue, the court said an arbitration is not an “action.” The opinion noted how parties could have included a provision in the arbitration clause limiting the time to bring an arbitration proceeding.

Florida, however, took the opposite stance in Raymond James Financial Services, Inc. v. Phillips, 126 So. 3d 186 (Fla. 2013). In this case, the court held the statute of limitations applied in arbitration. The lower court granted the plaintiff’s motion declaring the arbitration was not time barred. The Florida Supreme Court reversed, finding the term “action” in the statute of limitations includes arbitration because arbitration is considered a “civil action or proceeding.” Along with statutory interpretation, the court also relied on principles of fairness, noting a statute of limitations protects the defendant from being at a disadvantage due to untimely claims.

3. The UCC’s Statute of Limitations

The UCC bars bringing an “action” after four years. It defines action in § 1-201(b)(1) as a judicial proceeding and “any other proceeding in which rights are determined.” There is a strong argument that an arbitration is a “proceeding in which rights are determined,” thereby allowing the application of the limitations provisions. No courts discuss the Uniform Commercial Code’s statute of limitations provision in the context of arbitration. However, if the law in the governing jurisdiction is not clear, it may be beneficial to consider arguing for the UCC’s four-year limitation provision, if your dispute is governed by the UCC.

In order to qualify for this time bar, the dispute must revolve around a contract governed by the UCC. The UCC has three statutes of limitations provisions: §§ 2-725, 2A-506, and 3-118. Section 2-725 applies to contracts for the sale of goods, section 2A-506 applies to lease contracts, and section 3-118 governs negotiable instruments.

Practice Tip – Including a Limitations Period in the Arbitration Clause

Because many states have not addressed this issue, it can be very difficult to predict whether the general statute of limitations in the applicable state will apply to your dispute.  The easiest and most effective way to stay out of this confusion is to include a limitations provision in the arbitration agreement itself. With the only qualification that the time limit be “reasonable,” this practice ensures there is some time limit applicable to the arbitration.

Here are two examples of limitation provisions for the arbitration clause:

“Any demand for arbitration under this Agreement must be made before the statute of limitations applicable to such a claim has run.”

“Any demand for arbitration must be made within one year of discovery, or the claim will be deemed waived.”

Don’t be SOL! Always check whether the statute of limitations applies to your arbitration proceeding, and always put a time limit for bringing an action in your arbitration clause. There are no hard and fast rules to know when they apply and when they do not, but a simple search could save you from losing your action and your client’s money.

ArbitrationNation thanks Kevin Kitchen, a law student at the University of Minnesota, for researching and drafting this post.

The primary purpose of this blog is to educate lawyers and clients about arbitration law. So, what better way to celebrate my fourth blogiversary than with an awesome new infographic about compelling arbitration! Making a motion to compel arbitration is trickier than it seems. When people call me for advice, I often have to tell them they missed a key analytical step. So, I worked with my firm’s marketing team and a graphic designer and came up with a one page pictorial summary of the analysis lawyers and judges should follow when they consider compelling arbitration – it starts with what court you should be in, and what law you should apply, identifies which issues are appropriate for courts to decide, and leads you through other key issues on a path either to arbitration or court. Now, some caveats. Of course I cannot put every nuance of 90 years of federal case law interpreting the Federal Arbitration Act on a single page (at least not while keeping it attractive). So, this infographic should be considered a big picture checklist to ensure you considered each of the major issues and are on the right track, and not a comprehensive list of everything you might possibly need to know. For the same reason, this picture cannot take the place of a real live lawyer, who knows something of the facts of your case and can give you case and jurisdiction-specific advice. Finally, if you end up in an English roundabout while following the arrows, going in circles instead of toward any destination, I advise you to try again without the cocktail or just give me a call. (Note: You’ll want to click on the infographic for a high resolution PDF version. It’s a bit small to read otherwise.) ** Have I succeeded in educating you or someone you know about arbitration? If so, please nominate my blog for the ABA Journal’s Blawg 100 list here. I would be honored to have ArbitrationNation recognized for a fourth consecutive year.

Decision Flowchart for Compelling Arbitration
Decision Flowchart for Compelling Arbitration (Select image to open a high resolution PDF.)

I regularly receive questions about compelling arbitration under the Federal Arbitration Act.  In particular, people ask : (1) Can I file a motion to compel before any other “complaint” is filed; (2) What should I call my motion?; and (3) What is with this 5-day rule hidden inside Section 4 of the FAA?  Wanting to confirm the advice I give people, I asked our of our summer associates, Nicole Faulkner, to look into these arcane questions.  She did a great job, and here are her tips.

(1) First, it is perfectly fine to start an action with a petition to compel arbitration.  In fact, it is quite common. You will be hard pressed, however, to find a case or rule out there explicitly giving permission to do this. The best indicator that no classic “complaint” is necessary comes from dicta in Vaden v. Discovery Bank, 556 U.S. 49 (2009).  In that case, the Court is settling a jurisdiction issue but before reaching that question it held that courts should use a “look through” approach to assess the underlying claims. This “look through” approach, says the Court, “permits a § 4 petitioner to ask a federal court to compel arbitration without first taking the formal step of initiating or removing a federal question suit.” Voila! The dissent criticized the fact that the Court did not elaborate on what happens when the petition to compel IS a freestanding claim…what exactly do you “look through” to assess the jurisdiction when there is no Complaint? The Eleventh Circuit answered this question in Community State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011). In that scenario, the Court agreed with Vaden and stated that the “look through” approach gives the Court the ability to dive deep into the “full flavor” of the controversy and they are not limited to what is provided in the motion.

(2) As for your caption? Although you will see many examples titled “Motion to Compel Arbitration,” a true FAA aficionado should title her document “Petition to Compel Arbitration.” A plain read of the text in §§ 4 and 16 of the FAA gets you to this conclusion.

(3) As much as you may want to, you cannot pull in the standard response times under the Federal Rules of Civil Procedure when you’re dealing with petitions to compel arbitration. That twenty-day notice period does not apply here. Courts around the country have interpreted the 5-day rule in § 4 to mean just that—5 days. The FAA does not incorporate an additional response period and the reference to the Federal Rules of Civil Procedure applies only to the manner in which the notice is served. Unionmutual Stock Life Ins. Co. of Am. v. Beneficial Life Ins. Co., 774 F.2d 524, 526 (1st Cir. 1985). Federal district courts in California and Oregon have reached the same conclusion.  The respondent gets 5 days’ notice before the hearing. Guess what? That doesn’t mean 5 days from the time the hearing is scheduled. It means 5 days from the time you file your petition to compel arbitration. The Court in Unionmutual said that the original petition serves as notice that the hearing can be held at any time after 5 days has passed from the date the petition was served. So if the clerk notifies you ten days later that the hearing is on the eleventh day—the notice period was met.

Have any other burning procedural questions about compelling arbitration (or any other FAA-related process)?  Send them my way!  I might even address them before we get a new crop of summer associates…