The Finality Requirement for Judicial Review of an Award under the Federal Arbitration Act — 2, Maybe 3, Exceptions

From Pearl Seas Cruises, LLC v. Irving Shipbuilding Inc, 2011 U.S. Dist. LEXIS 12487 (D. Conn. Feb. 9, 2011):

Under the FAA "a district court does not have the power to review an interlocutory ruling by an arbitration panel." Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d Cir. 1980). "The language of the Act is unambiguous: it is only after an award has been made by the arbitrators that a party can seek to attack any of the arbitrators' determinations in court, by moving either to vacate the award" under 9 U.S.C. § 10 "or to modify or correct it" under 9 U.S.C. §11. Id. In Michaels, because the arbitral panel whose interim award the petitioner sought to vacate decided some aspects of liability but deferred decision on damages, the Second Circuit affirmed dismissal of the petition as non-justiciable, explaining that " [w]here, as here, arbitrators make an interim ruling that does not purport to resolve finally the issues submitted to them, judicial review is unavailable." Id. "In order to be 'final," an arbitration award must be intended by the arbitrators to be their complete determination of all claims submitted to them," and " [g]enerally, for a claim to be completely determined, the arbitrators must have decided not only the issue of liability of a party on the claim, but also the issue of damages." Id. at 413-14; see also Rocket Jewelry Box, Inc. v. Noble Gift Packaging, Inc., 157 F.3d 174, 176 (2d Cir. 1998) ("[A]n arbitration award, to be final, must resolve all issues submitted to arbitration, and . . . it must resolve them definitely enough so that the rights and obligations of the two parties, with respect to the issues submitted, do not stand in need of further adjudication." (emphasis in original)).

However, there are two recognized exceptions to the finality requirement. The first concerns wholly separable claims where an award "finally and conclusively disposed of a separate and independent claim and was subject to neither abatement nor set-off," even where that award did not dispose of all the claims that were submitted to arbitration. Metallgesellschaft A.G. v. M/V Capitan Constante, 790 F.2d 280, 283 (2d Cir. 1986). Such a separate and independent claim determination by an arbitrator can be reviewed in federal court. Id. In Metallgesellschaft, a ship owner sought through arbitration, inter alia, payment of freight charges upon delivery, which it claimed the charterer had improperly withheld. The charterer appealed the district court's confirmation of the arbitral award for unpaid freight on the basis that other claims and counterclaims remained outstanding; however, because the claim for freight payment upon delivery was wholly separable from the other claims before the arbitral panel, the partial award was justiciable under the FAA, and confirmation was affirmed. Id; see also Advest, Inc. v. Asseoff, No. 92 Civ. 2269, 1993 U.S. Dist. LEXIS 4839, 1993 WL 119690, *6 (S.D.N.Y. Apr. 14, 1993) (finding the issue of attorneys' fees alone to be a sufficiently separate claim to allow confirmation of resolved issues). The Second Circuit created the second exception to the finality requirement for explicitly bifurcated arbitration proceedings in Trade & Transport, Inc. v. Natural Petroleum Charterers Inc., where the parties requested that the arbitral panel bifurcate its adjudication of their claims and decide the issue of liability immediately, to be followed by a separate damages award at a later date. 931 F.2d 191, 195 (2d Cir. 1991). District courts within the Second Circuit have only recognized this exception to the arbitration-finality requirement where the parties expressly asked for immediate determinations in bifurcated proceedings. See, e.g,, Employers' Surplus Lines Ins. Co. v. Global Reinsurance Corp., No. 07 Civ. 2521(HB), 2008 U.S. Dist. LEXIS 8253, 2008 WL 337317, *5 (S.D.N.Y. Feb. 6, 2008) (because the parties did not seek immediate determination from the arbitrators, the case was distinguishable from Trade & Transport); c.f. Andrea Doreen, Ltd. v. Building Material Local Union 282, 250 F. Supp. 2d 107, 112 (E.D.N.Y. 2003) (because the parties agreed to bifurcate liability from remedy, the arbitrator's decision on liability was final and justiciable). ***

At oral argument, Petitioner urged the Court to consider a third exception to the arbitration-finality requirement, for "gateway" issues, in light of the Supreme Court's vacatur in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. of an arbitral award permitting class arbitration before other issues of liability and damages were addressed. 130 S. Ct. 1758, 176 L. Ed. 2d 605 (2010). In that case, the parties "entered into a supplemental agreement" requesting from the arbitration panel a "clause construction award," determining whether the arbitration clause allowed for class arbitration. After the panel concluded that the arbitration clause permitted class arbitration, the panel stayed further proceeding at the parties' request to allow judicial review. In Stolt-Nielsen, the Supreme Court had occasion to consider the ripeness of the petitioner's motion to vacate the clause construction award in responding to the dissent. The majority held that the matter was ripe based on "the fitness of the issues for judicial decision," and "the hardship of withholding judicial consideration" because "[t]he arbitration panel's award means that petitioners must now submit to class determination proceedings before arbitrators who, if petitioners are correct, have no authority to require class arbitration absent the parties' agreement to resolve their disputes on that basis." Id. at 1767 n.2 (internal quotations omitted).

The Sixth Circuit in Dealer Computer Services, Inc. v. Dub Herring Ford, "counsel[ed] against reading the decision's ripeness teaching more expansively than it deserves," given that the majority's "entire discussion of ripeness is confined to one footnote," addressing the issue "because the dissent raised it," and "[t]he Court had granted certiorari to decide whether imposing class arbitration on parties whose arbitration clauses are 'silent' on that issue is consistent with the Federal Arbitration Act" and not to "clarify the law of ripeness." 623 F.3d 348, 357 & n.4 (6th Cir. 2010). The Sixth Circuit reads Stolt-Nielsen to stand for the propositions that (1) "an interim arbitration award is subject to judicial review under the FAA, 9 U.S.C. §§ 9 and 10, only if jurisdictional requisites, including ripeness, are otherwise satisfied"; and (2) "the ripeness inquiry necessitates evaluation of the hardship posed to the movant in the event immediate judicial review were to be denied." Id. ***

...PSC does not face any imminent hardship absent judicial review, and Stolt-Nielsen does not support judicial review of PSC's interlocutory appeal from the arbitration in process.

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