"We have become an arbitration nation," says the Court.
The 9th Circuit affirmed the district court's order vacating an arbitration award under the Federal Arbitration Act, concluding that the arbitrator acted beyond his powers, rendering an award that was "irrational", failing to "draw the essence of the award" from subcontracts. Aspic Engineering and Construction Company v. ECC Centcom Constructors LLC, et al., No. 17-16510 (9th Cir. 1/28/19) (Smith, Nguyen, Restani).
Aspic, a local Afghan construction company, acted as a subcontractor for the prime contractor, ECC, in support of EEC's contracts with the U.S. Army Corps of Engineers. The subcontracts incorporated obligations that ECC owed to the U.S. government, and Federal Acquisition Regulations governing termination for convenience. (Termination for convenience refers to termination at any time without liability for damages that the other side might suffer). When the U.S. Army Corps of Engineers terminated for convenience its contracts with ECC, ECC did the same with Aspic.
Aspic sued for damages, and received an award from the arbitrator, who believed "ECC could not expect that ASPIC would be capable of modifying their local business practices to completely and strictly conform to the US governmental contracting practices that were normal to ECC. There was not a true meeting of minds . . . " Apparently, the arbitrator believed it would be unfair to inflict the Federal Acquisition Regulations upon Aspic, and based the award on the damages Aspic had suffered.
The arbitrator's award was confirmed and modified by a state court, ECC removed to the federal district court, the district court vacated the award, and the 9th Circuit affirmed the district court.
"We have become an arbitration nation," wrote Judge Smith. "An increasing number of private disputes are resolved not by courts, but by arbitrators. Although courts play a limited role in reviewing arbitral awards, our duty remains an important one. When an arbitrator disregards the plain text of a contract without legal justification simply to reach a result that he believes is just, we must intervene." The court concluded that the arbitrator's award exceeded his authority, failed to draw the essence of the award from the subcontracts, "disregarded specific provision of the plain text" in an effort to prevent an unfair result, and was "irrational."
COMMENT: Exceeding the powers of the arbitrator is a basis for vacatur in California and federal courts. However, "failing to draw the essence of the award" from the contract is language originating in federal cases in the context of collective bargaining. "[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960). We would not expect to find this language in a California state case involving vacatur of an arbitration award.
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