Attorneys routinely seek court enforcement of awards and judgments made in private arbitrations. A court judgment is required to collect on any arbitration award where the party against whom the award is made does not voluntarily submit payment. Given the liberal standard on enforcement of awards under the Federal Arbitration Act (FAA), courts typically enter such judgments without delay. Confusion can arise where the underlying contract contains a “final and binding” arbitration clause but does not contain an express “entry of judgment” provision. Many contracts contain arbitration provisions that provide that any arbitration conducted under the contract must be “final and binding”—but contracts occasionally omit language that permits “entry of judgment” upon the arbitrator’s decision. In the absence of such language, some federal courts have questioned whether they have any power at all to issue a judgment confirming a private arbitration award. This article explains the basic contours of the statutory source of the confusion and outlines why express “entry of judgment” language should not be required for a district court to confirm an arbitration award.

The Federal Arbitration Act, 9 U.S.C. § 9, provides a mechanism for judicial confirmation of awards issued in a private arbitration. Judicial review of an arbitration award under the FAA is extraordinarily narrow, and the proceedings connected with judicial confirmation are intended to be summary proceedings. Confirmation is denied in only a very limited set of circumstances set out in sections 10 and 11 of the FAA. However, some courts have questioned whether parties are ever entitled to judicial confirmation of an arbitration award under the FAA in the absence of an express entry of judgment provision in a contract.  

The question arises because section 9 of the FAA authorizes a judgment to be entered on an arbitration award if the parties “have agreed that a judgment of the court shall be entered.” In other words, some courts have expressed concern that section 9 has limiting language that can be read to prohibit entry of a judgment without specific “entry of judgment” language in the underlying contract that led to the arbitration.  In the absence of express language in the contract for the “entry of judgment,” does a district court have the power to issue such an award? 

The answer must be yes. Irrespective of the missing link in the FAA, express contractual entry of judgment language is not required in order for a federal court to act. As an initial matter, the U.S. Supreme Court spoke to this issue in dicta in the 2008 case Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576, 587 (2008).  Examining section 9 of the FAA, the Supreme Court noted that the confirmation provision of the FAA “carries no hint of flexibility.” Where a party petitions a court for an order confirming an arbitration award, section 9 states that the court “must grant” the order (absent vacatur or modification under sections 10 and 11). This, the Court explains, is “unequivocal[]”—there is “nothing malleable” about stating that a court “must grant” confirmation.  As if this was not strong enough, the Court concludes by stating: “This does not sound remotely like a provision meant to tell a court what to do just in case the parties say nothing else.” 

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