LD 1218, Page 3 - 121th Legislature, FIRST REGULAR Session

applies in both the federal courts and the state courts. To

date, the preemption-related opinions of the Supreme Court have

centered in large part on the two key issues that arise at the

front end of the arbitration process - enforcement of the

agreement to arbitrate and issues of substantive arbitrability.

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 35

(1967); Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460

U.S. 1 (1983); Southland Corp. v. Keating, 465 U.S. 2 (1984);

Perry v. Thomas, 482 U.S. 483 (1987); Allied-Bruce Terminix Cos.

v. Dobson, 513 U.S. 265 (1995); Doctor's Assocs. v. Cassarotto,

517 U.S. 681 (1996). That body of case law establishes that

state law of any ilk, including adaptations of the RUAA, mooting

or limiting contractual agreements to arbitrate must yield to

the pro-arbitration public policy voiced in Sections 2, 3, and 4

of the FAA.

The other issues to which the FAA speaks definitively lie at
the back end of the arbitration process. The standards and
procedure for vacatur, confirmation and modification of
arbitration awards are the subject of Sections 9, 10, 11, and
12 of the FAA. In contrast to the "front end" issues of
enforceability and substantive arbitrability, there is no
definitive Supreme Court case law speaking to the preemptive
effect, if any, of the FAA with regard to these "back end"
issues. This dimension of FAA preemption of state arbitration
law is further complicated by the strong majority view among
the United States Circuit Courts of Appeals that the Section
10(a) standards are not the exclusive grounds for vacatur.

Nevertheless, the Supreme Court's unequivocal stand to date
as to the preemptive effect of the FAA provides strong reason
to believe that a similar result will obtain with regard to
Section 10(a) grounds for vacatur. If it does, and if the
Supreme Court eventually determines that the Section 10(a)
standards are the sole grounds for vacatur of commercial
arbitration awards, FAA preemption of conflicting state law
with regard to the "back end" issues of vacatur (and
confirmation and modification) would be certain. If the Court
takes the opposite tack and holds that the Section 10(a)
grounds are not the exclusive criteria for vacatur, the
preemptive effect of Section 10(a) would most likely be
limited to the rule that state arbitration acts cannot
eliminate, limit or modify any of the four grounds of party
and arbitrator misconduct set out in Section 10(a). Any
definitive federal "common law," pertaining to the
nonstatutory grounds for vacatur other than those set out in
Section 10(a), articulated by the Supreme Court or established
as a clear majority rule by the United States Courts of
Appeals, likely would preempt contrary state law. A holding by
the Supreme Court that the Section 10(a) grounds are not
exclusive would also free the States to codify other grounds
for vacatur beyond those set out in Section 10(a).

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