Part II:

A Consent-Based Framework

for Enforcing Arbitration Awards

Enforcing Arbitration Agreements to Promote Arbitration

The purposes and objectives of the FAA are the same whether the question is whether arbitration should be compelled, litigation should be stayed or an award confirmed or vacated. The cornerstone of the FAA is the enforcement mandate of Section 2, which says: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Section 2 establishes federal substantive law mandating that arbitration agreements be placed on an “equal footing” with other contracts.[1] The other provisions of the FAA implement Section 2’s enforcement command.[2]

The U.S. Supreme Court has repeatedly said “that the central or primary purpose of the FAA is to ensure that private agreements to arbitrate are enforced according to their terms.”[3] An important corollary to the FAA’s enforcement purpose is “the basic precept that arbitration ‘is a matter of consent, not coercion’. . .”[4] While the courts have extensive coercive powers over persons and disputes within their statutory and constitutional personal and subject matter jurisdiction, “[a]rbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.”[5] And to that end, “[w]hether enforcing an agreement to arbitrate or construing an arbitration clause,” the FAA requires “courts and arbitrators . . . [to] give effect to the contractual rights and expectations of the parties.”[6]

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