USA Law and Practice Contributed by: Matthew Kirtland, Timothy Tyler, Katie Connolly and Taylor LeMay, Norton Rose Fulbright US LLP
As described in 4.2 Default Procedures , the FAA pro - vides a procedure for the appointment of a tribunal in
under the FAA, subject to confirmation and enforce - ment, where the interim relief is necessary to prevent the final award from becoming meaningless. 6.2 Role of Courts As discussed in 6.1 Types of Relief , US courts will confirm and enforce interim relief orders issued by an arbitral tribunal in limited circumstances. Alternatively, a party may seek interim relief from a court prior to constitution of the tribunal without waiv - ing its right to insist that its claims be arbitrated. US courts are empowered to issue preliminary injunctions and attachments of property as well as ex parte tem - porary restraining orders. While the FAA does not address this issue, emergency relief from an arbitrator is provided for by most institu - tions that conduct arbitrations in the United States, including the AAA, ICC, CPR and JAMS. Emergency decisions are viewed as interlocutory as they can later be altered upon formation of the tribunal. 6.3 Security for Costs The FAA is silent on whether courts and/or the arbi - tral tribunal can order security for costs, but federal district courts have the equitable power to require plaintiffs to post security for costs. This is especially common when a non-resident party is involved, but may be limited to urgent situations where arbitrators cannot act timely. When deciding to grant security for costs, courts strike a delicate balance between: • the degree of probability of success on the merits and the background purpose of the suit; • the reasonable extent of the security to be posed, viewed from the defendant’s perspective; and • the reasonable extent of the security to be posed, viewed from the non-domiciliary plaintiff’s perspec - tive.
certain circumstances. 7.2 Procedural Steps
The FAA does not require any particular procedural steps for arbitral proceedings conducted in the United States. 7.3 Powers and Duties of Arbitrators The FAA provides limited powers to arbitrators. Sec - tion 7 of the FAA empowers arbitrators to issue sub - poenas for the attendance of witnesses and/or the production of documents at a hearing. Courts are split, however, on whether this power is limited to the context of an evidentiary hearing. Generally, arbitra - tors cannot compel attendance of a non-party at a pre-hearing deposition. The FAA is also silent on the duties of arbitrators, including as to the independence and impartiality of arbitrators, except that evidence of partiality or cor - ruption can be grounds for vacating an award. 7.4 Legal Representatives The practice of law in the United States is regulated largely by individual states and their respective state bar associations. Legal counsel and arbitrators are subject to the ethi - cal codes and professional standards set by the state in which the arbitration is seated. US practitioners are also subject to the ethical codes and profes - sional standards of the jurisdiction in which they are licensed. All counsel and arbitrators should therefore familiarise themselves with the rules of the state in which the arbitration is seated. The jurisdictions where arbitrations are most typically seated in the US do not regard appearances by out- of-state or foreign lawyers in arbitrations as constitut - ing the “unauthorised practice of law” and therefore do not require such lawyers to be admitted locally. This is especially true for international arbitrations. Practitioners will be subject to the rules of conduct of the state bar where the arbitration takes place.
7. Procedure 7.1 Governing Rules
Parties are free to agree on the rules governing the procedure of arbitration, as the FAA does not contain any mandatory rules governing arbitral proceedings.
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