USA Law and Practice Contributed by: Matthew H. Kirtland, Timothy Tyler, Katie Connolly and Taylor LeMay, Norton Rose Fulbright
at the arbitral seat, parties should consider a court at the location of the witness. Outside the context of a hearing, the FAA does not empower the arbitrators to subpoena documents from third parties. 8.2 Rules of Evidence See 8.1 Collection and Submission of Evidence . 8.3 Powers of Compulsion See 8.1 Collection and Submission of Evidence . The FAA does not provide specific rules governing confidentiality. Nor do cases generally find an implicit commitment to confidentiality by merely agreeing to resolve disputes by arbitration. Most institutions’ rules provide default confidentiality rules, which apply when the parties do not have a specific agreement. US courts will generally uphold confidentiality agree - ments between parties made before or during an arbi - tration. 9. Confidentiality 9.1 Extent of Confidentiality Unless expressly protected by the parties’ agreement or chosen arbitration rules or a tribunal order, informa - tion in US court proceedings and papers filed in con - nection with them are presumptively open to the pub - lic. In short, information in arbitral proceedings is likely to be disclosed in judicial proceedings to enforce an arbitration agreement or arbitration award.
The FAA does not require a particular form for an arbi - tral award. Under the New York Convention, the award must be claimed within three years and the arbitration agreement must have been in writing. A motion to vacate the award must be filed and served within three months of the award being filed or delivered. 10.2 Types of Remedies The FAA does not limit available remedies. However, certain states may do so and, if state law governs rather than federal, those restrictions may apply. For example, in New York state arbitrations, arbitrators generally may not award punitive damages. In certain circumstances, courts have refused to enforce remedies in international arbitral awards that violate US public policy. For example, in Hardy Expl. & Prod. (India), Inc. v Gov’t of India, Ministry of Petro- leum & Nat. Gas , a district court refused to recognise an award that ordered specific performance in India, finding that doing so would violate US public policy recognising a state’s sovereignty and the right to con - trol its lands and natural resources. 10.3 Recovering Interest and Legal Costs The FAA is silent on costs, and courts diverge on the question of how the costs of arbitration proceedings should be estimated and allocated. Costs are gen - erally handled as a matter of contractual agreement between the parties or according to the institutional rules that govern a proceeding. Generally, the US fol - lows the American Rule, ie, each party bears its own costs. The FAA is silent on interest. However, US courts have generally held that, unless parties have specified oth - erwise in their agreement, arbitrators have the author - ity to award interest and to determine the amount of interest and the date from which the interest should be calculated. Moreover, in the United States, unless specified oth - erwise in the parties’ arbitration agreement, once an award is confirmed, post-award interest will be gov - erned by the federal post-judgment interest statute, 28 USC Section 1961. This is because the United States has adopted the doctrine of merger, whereby once a claim (or award) is reduced to a judgment, the
10. The Award 10.1 Legal Requirements
In order for an arbitral award to be enforced by US courts, it must be “confirmed” (ie, recognised) by a court with jurisdiction. The legal requirements for con - firmation/recognition and enforcement differ depend - ing on the nature of the award and the jurisdiction in which recognition is sought. There is no requirement that the award be reasoned, unless agreed by the par - ties.
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