Commercial Litigation and Arbitration

Arbitration — Judgment May Be Entered Confirming Award under FAA Even Though Neither Arbitration Clause Nor Governing Rules Explicitly So Provide

Section 9 of the Federal Arbitration Act authorizes a judgment to be entered on an arbitration award "[i]f the parties . . . have agreed that a judgment" may be so entered. The arbitration clause in Qorvis Commc’ns v. Wilson, 2008 U.S. App. LEXIS 24376 (4th Cir. Dec. 3, 2008), did not so provide. Nor did it adopt the rules of a governing organization, like the American Arbitration Association, that specifically so provide. Therefore, the losing defendant (Wilson) contended that no judgment could be entered enforcing the award. The Fourth Circuit, in affirming entry of judgment on the award, focused on Section 2 of the FAA, which provides:

A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. [Court’s emphasis.]

The Fourth Circuit’s analysis:

The FAA also reflects a strong congressional preference for arbitration. ... Consistent with this policy preference, the Supreme Court has noted that § 9 need not be satisfied by any magical language. Rather courts must undertake enforcement of arbitration awards "so long as the parties contemplated judicial enforcement." .... Indeed, we have held that a simple contractual reference of disputes to arbitration under the rules of the American Arbitration Association implies binding arbitration with authorization of enforcement of an award by judgment....

In this case, the arbitration clause mandates that specified disputes "be resolv ed exclusively by arbitration" under "the Employment Dispute Resolution Rules of JAMS." (Emphasis added). The clause also includes the provision that "[i]f required by applicable law to make this duty to arbitrate enforceable as to any claim, [Qorvis] shall pay the cost of the arbitration proceeding . . . ." (Emphasis added). Moreover, the "JAMS Employment Arbitration Rules and Procedures" (hereafter "JAMS Rules"), that are referred to, 3 provide that " [p]roceedings to enforce, confirm, modify or vacate an Award will be controlled by and conducted in conformity with the Federal Arbitration Act . . . or applicable state law." JAMS Rule 25 (emphasis added).

It is true that the arbitration clause in this case does not, in haec verba, provide that "a judgment of the court shall be entered upon the award." 9 U.S.C. § 9. But the nature of the arbitration commitment and the parties' use of it leave little doubt that both Qorvis and Wilson contemplated binding arbitration with enforcement of any award through the entry of a judgment in a court.

First, the parties committed "all disputes" relating to the 2003 employment agreement or to Wilson's employment to arbitration and specified that such arbitration was the exclusive method for resolving the disputes. Second, the parties agreed to be governed by the JAMS Rules. Therefore, any award resulting from arbitration was, under the JAMS Rules, final, JAMS Rule 24, and enforceable in "proceedings" conducted under the FAA, JAMS Rule 25. Finally, the parties actually followed the specified arbitration process, without objection by either party, leading to a final award that both parties submitted to the district court. Qorvis sought confirmation of the award from the court, and Wilson sought vacation of it.

Thus, when Qorvis and Wilson agreed to arbitration as the exclusive method for resolving disputes, they excluded the possibility that disputes could be resolved de novo in court, and any award entered pursuant to the arbitration would therefore be final.... When the parties also agreed to resolve disputes in arbitration, they similarly agreed that a "firm decision" on the dispute would be made in arbitration.... And when the parties agreed to employ the JAMS Rules, they agreed that the arbitration award was to be "considered final, for purposes of . . . a judicial proceeding to enforce, modify or vacate the Award." JAMS Rule 24. In short, the parties agreed that "all disputes" would be resolved by arbitration; that arbitration would be the exclusive method for resolving a dispute; that the award would be final; and that the award could be enforced in court under the FAA. The parties' agreement thus excluded the possibility that pursuing an arbitration award was only a condition precedent to a de novo court litigation.

In addition, the arbitration clause in this case contains language explicitly anticipating enforcement of the award ("If required by applicable law to make this duty to arbitrate enforceable as to any claim, [Qorvis] shall pay the cost of the arbitration proceeding hereunder"), directly implying that a judgment on the award was contemplated.


Wilson argues that the JAMS Rules are not as clear [as the AAA Rules]. Unlike the rules of the American Arbitration Association, there is no provision in the JAMS Rules stating explicitly that the parties to the arbitration are deemed to have consented that judgment be entered upon the award.... Although it is true that the JAMS Rules do not contain such explicit language, they do undoubtedly imply the same. ***

Suggestion to JAMS: Tweak your rules.

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