Federal circuit courts are split over the legal test that should be applied to determine whether federal question jurisdiction exists for petitions to confirm, vacate, or modify arbitration awards. The U.S. Court of Appeals for the First Circuit and Second Circuit allow a “look-through test” in which the court may examine the underlying dispute — the reason the parties initially went to arbitration — to see whether the court has jurisdiction. However, the U.S. Court of Appeals for the Third, Seventh and D.C. Circuits disagree, holding that federal courts do not have such broad powers absent statutory authority.
Neal M. Eiseman was quoted in a recent story about this circuit split in Litigation News, one of the premier publications of the American Bar Association’s Section of Litigation.
Eiseman describes the approach taken by the First and Second Circuits as “very practical.” Moreover, he notes that “ordinarily it does not make a big difference whether motions to vacate or modify arbitration awards are litigated in federal or state court [because] state courts may apply the FAA, or even if they apply state statutes, the standards are generally not that different than the FAA.”
Eiseman regularly represents clients in commercial arbitration, and serves as an arbitrator himself. He also teaches and writes regularly on dispute resolution. As an Adjunct Professor at New York University, he teaches a course on negotiation and dispute resolution. His articles on arbitration and mediation have appeared in the Cardozo Journal of Conflict Resolution, the Harvard Negotiation Law Review, and the New York Law Journal.
The full article is available here.