| 3. The second major impediment to inclusion of an opt-in |
provision for judicial review in the RUAA (and contractual |
provisions to the same effect) is the contention that the |
parties cannot contractually "create" subject matter |
jurisdiction in the courts when it does not otherwise exist. |
The "creation" of jurisdiction transpires because a statutory |
provision that authorizes the parties to contractually create |
or expand the jurisdiction of the state or federal courts can |
result in courts being obliged to vacate arbitration awards on |
grounds they otherwise would be foreclosed from relying upon. |
Court cases under the federal law show the uncertainty of an |
opt-in approach. See, e.g., Chicago Typographical Union v. |
Chicago Sun-Times, 935 F.2d 1501, 1505 (7th Cir. 1991) ("If |
the parties want, they can contract for an appellate |
arbitration panel to review the arbitrator's award. But they |
cannot contract for judicial review of that award; federal |
[court] jurisdiction cannot be created by contract.") (labor |
arbitration case); but see Gateway Technologies, Inc. v. MCI |
Telecommunications Corp., 64 F.3d 993, 996 (5th Cir. 1995) |
(The court, relying on the Supreme Court's contractual view of |
the commercial arbitration process reflected in Volt, |
Mastrobuono, and First Options of Chicago v. Kaplan, 514 U.S. |
938, 947 (1995), the court held valid a contractual provision |
providing for judicial review of arbitral errors of law. The |
court concluded that the vacatur standards set out in |
Section10(a) of the FAA provide only the default option in |
circumstances where the parties fail to contractually |
stipulate some alternate criteria for vacatur). |