USA Law and Practice Contributed by: Matthew Kirtland, Timothy Tyler, Katie Connolly and Taylor LeMay, Norton Rose Fulbright US LLP
agreement of the parties or, absent such an agree - ment, the law of the arbitral seat; • the award has not yet become binding on the par - ties, or was set aside in the country where it was made; or • the dispute was not arbitrable under US law or is contrary to US public policy. These are the exclusive grounds for refusing to enforce a New York or Panama Convention award, as imple - mented into US law by the FAA. Thus, barring these statutory exceptions, arbitration awards will generally be enforced. Per the New York Convention, courts may also refuse to recognise and enforce an award when it contra - venes domestic public policy. In US courts, “public policy” is narrowly interpreted. Challenging enforce - ment based on public policy would likely require the violation of an unambiguous, well-defined and domi - nant public policy. However, the US Supreme Court has not clarified whether refusing enforcement based on public policy grounds rather than the FAA’s enumerated categories is permissible. There is currently a circuit split. 13. Miscellaneous 13.1 Class Action or Group Arbitration The FAA is silent on whether class action arbitration is allowed. The US Supreme Court has held that a party may not be compelled to submit to class arbitration absent an agreement to do so. An agreement to sub - mit to class action arbitration must be express; courts may not infer consent to class arbitration through state law interpretation of an ambiguous contract. “Mass arbitrations” have emerged in recent years, largely in domestic US employment and business-to- consumer contexts. Dozens, sometimes thousands, of individuals bound by class action waivers in arbi -
tration agreements assert each of their claims, indi - vidually, in arbitration. The arbitration agreement, the arbitration rules or the applicable law often require the business to pay the lion’s share of arbitration costs, resulting in very significant upfront fees for businesses facing these “mass arbitrations”. Some US-based arbitration organisations have refined their fee schedules to mitigate this impact. The area of the law is developing quickly as a matter of US domestic arbitration law. 13.2 Ethical Codes See 7.4 Legal Representatives . Some institutions provide guidance on the ethical requirements for arbitrators; see, for example, the American Bar Association Code of Ethics for Arbitra - tors in Commercial Disputes, and the JAMS Arbitra - tors Ethics Guidelines. 13.3 Third-Party Funding The FAA does not provide any rules or restrictions on third-party funders. However, the US Congress is currently considering various pieces of legislation that would require the disclosure of third-party funders to courts in civil actions, including in actions to enforce arbitral awards or arbitration agreements. This legisla - tion would not apply to arbitrations. 13.4 Consolidation The FAA does not provide for the joinder of parties, nor the consolidation of multiple arbitrations. The US Supreme Court holds that parties may specify with whom they choose to arbitrate their disputes, which entails that multi-party and multi-contract arbitration agreements are generally enforceable. Whether join - der or consolidation is permitted is left to arbitral tri - bunals to decide, unless the parties specify otherwise in their agreement. 13.5 Binding of Third Parties See 5.6 Jurisdiction Over Third Parties .
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