USA Law and Practice Contributed by: Matthew Kirtland, Timothy Tyler, Katie Connolly and Taylor LeMay, Norton Rose Fulbright US LLP
As the issue of arbitrability is so narrow, in practical terms, US courts’ review of arbitral rulings on jurisdic -
can obtain appellate court review of the first instance court’s ruling before having to proceed with litigation. 5.6 Jurisdiction Over Third Parties The FAA does not address whether third parties or non-signatories are bound by arbitration agreements. Generally, only a party to an agreement is bound by or may enforce the agreement. However, US courts have enforced arbitration agree - ments against non-signatories (or allowed non-signa - tories to enforce arbitration agreements) in the follow - ing circumstances: • waiver and estoppel; • piercing the corporate veil; • assumption; • alter ego; • incorporation by reference; • third-party beneficiary theories; • assignment; • agency principles; • closely affiliated persons or entities; The FAA does not contain provisions regarding interim measures. However, most institutional rules, which parties may incorporate into their agreements, empower a tribunal to issue interim measures. These include: • injunctions for the preservation of evidence or assets; • security for costs; and • temporary restraining orders. These rules, however, require the arbitrators to give both parties an opportunity to be heard, and do not usually permit the type of ex parte restraining orders often granted by US courts. • intertwined claims; and • trade custom and usage. 6. Preliminary and Interim Relief 6.1 Types of Relief US courts have treated interim measures orders issued by the tribunals as enforceable final awards
tion tends to also be narrow. 5.3 Timing of Challenge
Even before an arbitration has been filed, parties can challenge the putative jurisdiction of an arbitral tribu - nal by filing suit in a US court instead of participating in the arbitration. After an arbitration has been filed, if a party partici - pates in an arbitration on the merits without expressly objecting to arbitral jurisdiction, the party risks waiving its right to challenge arbitral jurisdiction. However, if that party files an objection to the tribunal’s jurisdic - tion and then participates, the jurisdictional objection is preserved for later court review. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility The standard of judicial review for questions of juris - diction and admissibility depends on the parties’ agreement about delegation and whether the thresh - old issue of arbitrability is at issue (see 3.2 Arbitrabil- ity ). Generally, such determinations are made de novo. As noted in 5.2 Circumstances for Court Interven- tion , once arbitrability is determined in favour of arbi - trations, courts will review arbitrators’ decisions on admissibility and jurisdiction deferentially. 5.5 Breach of Arbitration Agreement Parties that commence court proceedings in breach of an arbitration agreement will likely be met by the opposing party with a motion to stay the court litiga - tion and compel arbitration. Courts will determine the threshold question of arbitrability (unless validly del - egated to the arbitrators). If there is a valid arbitration agreement, courts will not hesitate to stay the litigation and compel arbitration. The FAA does not allow an immediate appeal from a court decision that compels arbitration and requires the arbitration to proceed and conclude before appeal, nor does it allow a party to request permission to appeal such decisions. However, the FAA allows immediate appeal from a decision refusing to com - pel arbitration and stay litigation. In this case, a party
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