Alternative Dispute Resolution (ADR) generally means arbitration or mediation. Mediation is a non-binding process where a neutral third-party intermediary attempts to bring the disputing parties together to resolve a dispute voluntarily. Arbitration, on the other hand, is a binding process where the third-party neutral has the authority to, after considering the parties' respective positions through an evidentiary proceeding, make decisions on the issues that the parties must accept.

For the past decade or longer, ADR has been the darling of lawyers and clients, who seek alternatives to the prolonged and costly process of court litigation. This is reflected in the following facts: the number of disputes resolved by ADR has increased dramatically; traditional arbitration organizations have expanded the scope of their services to include mediation and other ADR activities; new arbitration organizations have been formed to compete with the traditional providers; and more and more lawyers are advertising their services as mediators and arbitrators. This article deals with a particular aspect of arbitration - the ability of parties to obtain judicial review of the decision of the arbitrator, in other words, an appeal.

State and Federal Arbitration Statutes
Each state and the Federal system have their own statutory arbitration scheme. The Federal Arbitration Act (FAA) can be found at 9 U.S.C.A. § 1. et seq. Many states, like Arizona, model their arbitration regimes on the Uniform Arbitration Act.[i] Typically, the governing arbitration statutes restrict the right of appeal of an arbitration decision. The Arizona statute, following the Uniform Act, provides that a court can review an arbitrator's decision only in the following circumstances: where the award was procured by corruption, fraud or other undue means; evident partiality by a neutral arbitrator; where the arbitrator(s) exceeded his powers; where the arbitrator(s) conducted the hearing contrary to law or to the substantial prejudice of one of the parties; and where the adverse party contested the arbitration and did not participate in the proceeding.[ii] Applying these provisions, Arizona courts have consistently recognized the limited role of trial courts in reviewing the arbitration award.[iii] Under the FAA grounds for vacating an arbitration award include where the award was procured by "corruption," "fraud" or "undue means" and where the arbitrators were "guilty of misconduct" or "exceeded their powers." Grounds for modifying or correcting an award include "evident material miscalculation," "evident material mistake" and "imperfections in matter of form not affecting the merits."[iv]

It should be noted that neither the Uniform/Arizona Act nor the Federal Act provides an appeal in circumstances where one party believes that the arbitrator(s) erred with respect to factual findings or application of law. In fact, there are many court decisions from numerous jurisdictions, including Arizona, that uphold the rejection of appeals on those grounds.[v] And, many courts have gone so far as to say that there is no right to contest an arbitration award even where the arbitrator clearly ignored the facts or the law.[vi]

To deal with what many perceive to be the unjust results of allowing an arbitrator such wide discretion, many lawyers have attempted to insert provisions in contractual arbitration agreements that require arbitrators to apply the law of the jurisdiction to the facts and provide the parties with a right to appeal the arbitrator's rulings if they believe that the arbitrator exceeded his authority by deviating from that standard. This drafting practice has resulted in one of the hot issues relating to arbitration practice over the past few years. The issue is whether parties to an arbitration agreement can contractually agree to a judicial review provision that will be enforceable in the courts. This issue stems from the conflict between the accepted concept that arbitration agreements are contracts between the parties who have the right and power to determine their own processes, and the traditional review limitations found in the various arbitration enabling statutes that are based on the long-held polices of cost saving and finality. As reflected in the cases discussed below, the answer to the question depends on the language of the arbitration agreement and the law of the jurisdiction that governs the arbitration process.

The starting point of the discussion lies in the fact that most courts view arbitration agreements as contracts, to be shaped by the parties through negotiations just as any other contract. And, because the parties have made their own deal, they are bound by it.[vii] The California Supreme Court has expressly held that in private arbitration, "[t]he scope of arbitration is...a matter of agreement between the parties" and "[t]he powers of an arbitrator are limited and circumscribed by the agreement or stipulation of submission."[viii] Other courts that have similarly held include the United States Supreme Court.[ix]

On the other hand, courts also generally recognize two other countervailing principles: the first is that parties enter arbitration agreements in order to obtain quicker, less expensive, final resolution of disputes[x]; and, second, that an arbitrator is free to decide matters submitted to him as he or she sees fit.[xi]

The tensions among these competing principles are reflected in the different treatments of the issues in this year's decisions of the United States Supreme Court in Hall Street Associates, LLC v. Mattel, Inc., --- US---, 128 S. Ct. 1396, 170 L. Ed 2d. 254 (2008) (applying the Federal Arbitration Act) and the California Supreme Court in Cable Connection, Inc. v. DIRECTV, Inc., 44 Cal.4th 1334, 190 P.3d 586 (2008) (applying California's Arbitration Act). As more fully explained below, in Hall Street, the United States Supreme Court held that parties to an arbitration contract could not expand the review powers set out in the FAA. However, in Cable Connection, the California Supreme Court allowed the parties to do exactly that under the California statute.

Hall Street involved a lease dispute. After a bench trial in Federal District Court on some issues, the parties proposed to resolve the remaining issues by arbitration. Their arbitration agreement required the court to vacate, modify or correct any award if the arbitrator's findings of fact were not supported by substantial evidence or where the conclusions of law were erroneous. Although the procedural history is somewhat convoluted, essentially, after the arbitration, the District Court, applying the agreement's legal-error review standard, vacated the arbitrator's award. The Ninth Circuit Court of Appeals reversed on the grounds that the expanded review provisions were unenforceable. The Supreme Court agreed with the Ninth Circuit, rejecting the argument that arbitration is a matter of contract and that the FAA reflects a congressional desire to enforce such contracts.[xii]

However, the Supreme Court left open a huge loophole. The Court emphasized that its decision was based entirely on the FAA's judicial review mechanisms, and that it "decides nothing about other possible avenues for judicial enforcement of awards." The Court noted that the FAA is not the only way into court for parties wanting review of arbitration awards.[xiii] Other possible avenues into the Federal court system include state statutory or common law[xiv]; and, other alternatives including the Alternative Dispute Resolution Act of 1998 (28 USCA § 651. et seq.).[xv] Clearly, the Supreme Court did not issue a broad ban on judicial review of arbitration awards - "We express no opinion on these matters beyond leaving them open for Hall Street to press on remand."[xvi]

The California Supreme Court in Cable Connections, Inc v. DirecTV, Inc., 44 Cal.4th 1334, 190 P.3d 586 (2008) recently took a different tact in the context of the California Arbitration Act, which is very similar to the Arizona statute (and the Uniform Act). Similar to the FAA and the Uniform/Arizona Act, the CAA allows judicial review to vacate or modify an arbitration award under the following circumstances: (1) where the award was procured by corruption, fraud or undue means; (2) issued by corrupt arbitrators; (3) affected by prejudicial misconduct on the part of the arbitrators; or (4) in excess of the arbitrators' powers.[xvii]

In Cable Connections, Inc. the California Supreme Court decided that California's rule would be that parties in arbitration may obtain judicial review of the merits of an arbitration award by express agreement. The Court held that the following clause, providing for judicial review of an arbitrator's decision, was enforceable under state law: "The arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error." The California Supreme Court reasoned: "[T] failure to provide for [traditional judicial review] by statute does not mean the parties themselves may not do so by contract."[xviii] "If the parties constrain the arbitrators' authority by requiring a dispute to be decided according to the rule of law and make plain their intention that the award is reviewable for legal error, the general rule of limited review has been displaced by the parties' agreement."[xix] The Court went on to state: "Accordingly, policies favoring the efficiency of private arbitration as a means of dispute resolution must sometimes yield to its fundamentally contractual nature, and to the attendant requirement that arbitration shall proceed as the parties themselves have agreed."[xx] In sum, noted the Court, objections to expanded judicial review "are outweighed by the freedom of contract that is fundamental to arbitration..."[xxi]

Very significant in the analysis of the California Supreme Court was its emphasis on the need for express language granting judicial review of the arbitrator's decision. In approving the language quoted above, the Supreme Court distinguished the provision before it from other similar provisions that had come before the California appellate courts in recent years, which had been rejected as being too vague or too implicit to create the right to appellate review. Examples of those cases are Baize v. Eastridge Companies, LLC,[xxii] which included the phrases "the arbitrator shall apply California law" and "shall be constrained by the rule of law"; and Marsch v. Williams,[xxiii] California law "shall govern the interpretation and effect" of the contract.

Although the Arizona Court of Appeals has stated that a decision of an arbitrator on a question of fact or of law is final and conclusive, except when they conflict with the express guidelines or standards set forth or adopted in the arbitration agreement,[xxiv] Arizona appellate courts have not addressed these specific issues. Thus, even though the Smitty's Super-Valu language may suggest a position consistent with the California Supreme Court in Cable Connections, we do not know what the Arizona appellate courts will decide on this issue. Nevertheless, the lesson of these cases is clear: If you want to have the potential right to appeal an arbitration award, you should do the following:

  • You should make sure that you do not include a provision that the matter is to proceed under the Federal Arbitration Act; rather, make sure it is to proceed under the state's version of the Uniform Act or, maybe even better, the California Arbitration Act; and,
  • You should make sure the judicial review provision is very explicit. Clauses that are the slightest bit vague stand to be rejected.

 


[i] 1956 Uniform Arbitration Act (ULA) §§ 1 et seq.; A.R.S. § 12-501, et seq.

[ii] A.R.S. § 12-1512(A)(1-5).

[iii] See Fisher on behalf of Fisher v. National General Ins. Co., 192 Ariz. 366, 965 P.2d 100 (App. 1998) (Arbitrator's decision is generally final and conclusive; the Uniform Arbitration Act provides very limited grounds for the trial court to deny confirmation of an arbitration award.)

[iv] 9 U.S.C.A. §§ 10 and 11.

[v] Pavelich v. Farmers Ins. Co., 127 Ariz. 170, 618 P.2d 1096 (App. 1980) (Trial court can not substitute its view of evidence for that of arbitrator) and Hirt v. Hervey, 118 Ariz. 543, 578 P.2d 624 (App. 1978) (same).

[vi] Verdex Steel & Const. Co. v. Bd. of Supvr., Maricopa County, 19 Ariz. App. 547, 509 P.2d 240 (1973) (Even though a court reviewing an arbitration award might consider some rulings erroneous, the rulings are binding unless they result in an improper expansion of the arbitrator's powers.).

[vii] Arizona cases on this point include Valdiviezo v. Phelps Dodge Hidalgo Smelter, Inc., 995 F. Supp. 1060 (D. Ariz. 1997) (Arbitration is a matter of contract and a party cannot be required to arbitrate any dispute which he has not agreed to arbitrate.) and Smitty's Super-Valu, Inc. v. Pasqualete, 22 Ariz. App. 178, 525 P.2d 309 (1974) (The boundaries of the arbitrator's powers are defined by the agreement of the parties.).

[viii] Moncharsh v. Heily & Blase, 3 Cal. 4th 1, 8-9, 832 P.2d 899, 902, 10 Cal. Rptr. 2nd 183, 186 (1992) (citations omitted).

[ix] See, Hall Street Associates, LLC v. Mattel, Inc., --- U.S.---, 128 S. Ct. 1396, 1402 (2008) (arbitration agreements are on equal footing with all other contracts); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947 (1995) ("...[T]he basic objective [of arbitration agreements is] to ensure that commercial arbitration agreements, like other contracts, are enforced according to their terms...and according to the intentions of the parties."); and Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 625 (1985) (the Federal policy served by the FAA is "at bottom a policy guaranteeing the enforcement of private contractual arrangements.").

[x] Canon School Dist No. 50 v. WES Const. Co., Inc., 180 Ariz. 148, 882 P.2d 1274 (1994) and Old Republic Ins. Co. v. St. Paul Fire & Marine Ins. Co., 45 Cal App. 4th 631, 638 (1996) ("the primary purposes of arbitration, quicker results and early finality").

[xi] See, e.g. Moncharsh, 3 Cal. 4th 1, 10-12, 832 P.2d 899 ("arbitrators, unless specifically required to act in conformity with rules of law may base their decision upon broad principles of justice and equity and in doing so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action..."; judicial deference to an arbitrator's findings of fact and application of law is based on the fact that the parties to the agreement knowingly take the risk of such error as a "trade off" in order to obtain speedy decisions.). See also Moshonov v. Walsh, 22 Cal. 4th 771, 775-777 (2000) ("When parties contract to resolve their disputes by private arbitration, their agreement ordinarily contemplates that the arbitrator will have the power to decide any questions .... Inherent in that power is the possibility the arbitrator may err in deciding some aspect of the case. Arbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral awards may not ordinarily be vacated because of such an error for the arbitrator's resolution of theses issues is what the parties bargained for in the arbitration agreement.").

[xii] Interestingly, before the Supreme Court's Hall Street decision, the Federal Circuits were split on the issue - 3 agreeing with unenforceability (Eighth, Ninth and Tenth Circuits) and 5 holding that the parties could expand review by contract (First, Third, Fourth, Fifth, and Sixth Circuits). (128 S. Ct. 1403, fn. 5.)

[xiii] Id. at 1406.

[xiv] Id.

[xv] Id. at 1407.

[xvi] Id.

[xvii] Code Civ. Proc., § 1286.2(a)(4).

[xviii] 44 Cal. 4th at 1357, 109 P.3d at 601-02, emphasis in original.

[xix] 44 Cal. 4th at 1355, 109 P.3d at 600, emphasis in original.

[xx] 44 Cal. 4th at 1358, 109 P.3d at 602, quoting Vandenberg v Superior Court, 21 Cal App 4th 815, 831 (1999). (Emphasis in original.)

[xxi] 44 Cal. 4th at 604, 109 P.3d at 1361.

[xxii] 142

Alternative Dispute Resolution (ADR) generally means arbitration or mediation. Mediation is a non-binding process where a neutral third-party intermediary attempts to bring the disputing parties together to resolve a dispute voluntarily. Arbitration, on the other hand, is a binding process where the third-party neutral has the authority to, after considering the parties' respective positions through an evidentiary proceeding, make decisions on the issues that the parties must accept.

For the past decade or longer, ADR has been the darling of lawyers and clients, who seek alternatives to the prolonged and costly process of court litigation. This is reflected in the following facts: the number of disputes resolved by ADR has increased dramatically; traditional arbitration organizations have expanded the scope of their services to include mediation and other ADR activities; new arbitration organizations have been formed to compete with the traditional providers; and more and more lawyers are advertising their services as mediators and arbitrators. This article deals with a particular aspect of arbitration - the ability of parties to obtain judicial review of the decision of the arbitrator, in other words, an appeal.

Each state and the Federal system have their own statutory arbitration scheme. The Federal Arbitration Act (FAA) can be found at 9 U.S.C.A. § 1. et seq. Many states, like Arizona, model their arbitration regimes on the Uniform Arbitration Act.[i] Typically, the governing arbitration statues restrict the right of appeal of an arbitration decision. The Arizona statute, following the Uniform Act, provides that a court can review an arbitrator's decision only in the following circumstances: where the award was procured by corruption, fraud or other undue means; evident partiality by a neutral arbitrator; where the arbitrator(s) exceeded his powers; where the arbitrator(s) conducted the hearing contrary to law or to the substantial prejudice of one of the parties; and where the adverse party contested the arbitration and did not participate in the proceeding.[ii] Applying these provisions, Arizona courts have consistently recognized the limited role of trial courts in reviewing the arbitration award.[iii] Under the FAA grounds for vacating an arbitration award include where the award was procured by "corruption," "fraud" or "undue means" and where the arbitrators were "guilty of misconduct" or "exceeded their powers." Grounds for modifying or correcting an award include "evident material miscalculation," "evident material mistake" and "imperfections in matter of form not affecting the merits."[iv]

It should be noted that neither the Uniform/Arizona Act nor the Federal Act provides an appeal in circumstances where one party believes that the arbitrator(s) erred with respect to factual findings or application of law. In fact, there are many court decisions from numerous jurisdictions, including Arizona, that uphold the rejection of appeals on those grounds.[v] And, many courts have gone so far as to say that there is no right to contest an arbitration award even where the arbitrator clearly ignored the facts or the law.[vi]

To deal with what many perceive to be the unjust results of allowing an arbitrator such wide discretion, many lawyers have attempted to insert provisions in contractual arbitration agreements that require arbitrators to apply the law of the jurisdiction to the facts and provide the parties with a right to appeal the arbitrator's rulings if they believe that the arbitrator exceeded his authority by deviating from that standard. This drafting practice has resulted in one of the hot issues relating to arbitration practice over the past few years. The issue is whether parties to an arbitration agreement can contractually agree to a judicial review provision that will be enforceable in the courts. This issue stems from the conflict between the accepted concept that arbitration agreements are contracts between the parties who have the right and power to determine their own processes, and the traditional review limitations found in the various arbitration enabling statutes that are based on the long-held polices of cost saving and finality. As reflected in the cases discussed below, the answer to the question depends on the language of the arbitration agreement and the law of the jurisdiction that governs the arbitration process.

The starting point of the discussion lies in the fact that most courts view arbitration agreements as contracts, to be shaped by the parties through negotiations just as any other contract. And, because the parties have made their own deal, they are bound by it.[vii] The California Supreme Court has expressly held that in private arbitration, "[t]he scope of arbitration is...a matter of agreement between the parties" and "[t]he powers of an arbitrator are limited and circumscribed by the agreement or stipulation of submission."[viii] Other courts that have similarly held include the United States Supreme Court.[ix]

On the other hand, courts also generally recognize two other countervailing principles: the first is that parties enter arbitration agreements in order to obtain quicker, less expensive, final resolution of disputes[x]; and, second, that an arbitrator is free to decide matters submitted to him as he or she sees fit.[xi]

The tensions among these competing principles are reflected in the different treatments of the issues in this year's decisions of the United States Supreme Court in Hall Street Associates, LLC v. Mattel, Inc., --- US---, 128 S. Ct. 1396, 170 L. Ed 2d. 254 (2008) (applying the Federal Arbitration Act) and the California Supreme Court in Cable Connection, Inc. v. DIRECTV, Inc., 44 Cal.4th 1334, 190 P.3d 586 (2008) (applying California's Arbitration Act). As more fully explained below, in Hall Street, the United States Supreme Court held that parties to an arbitration contract could not expand the review powers set out in the FAA. However, in Cable Connection, the California Supreme Court allowed the parties to do exactly that under the California statute.

Hall Street involved a lease dispute. After a bench trial in Federal District Court on some issues, the parties proposed to resolve the remaining issues by arbitration. Their arbitration agreement required the court to vacate, modify or correct any award if the arbitrator's findings of fact were not supported by substantial evidence or where the conclusions of law were erroneous. Although the procedural history is somewhat convoluted, essentially, after the arbitration, the District Court, applying the agreement's legal-error review standard, vacated the arbitrator's award. The Ninth Circuit Court of Appeals reversed on the grounds that the expanded review provisions were unenforceable. The Supreme Court agreed with the Ninth Circuit, rejecting the argument that arbitration is a matter of contract and that the FAA reflects a congressional desire to enforce such contracts.[xii]

However, the Supreme Court left open a huge loophole. The Court emphasized that its decision was based entirely on the FAA's judicial review mechanisms, and that it "decides nothing about other possible avenues for judicial enforcement of awards." The Court noted that the FAA is not the only way into court for parties wanting review of arbitration awards.[xiii] Other possible avenues into the Federal court system include state statutory or common law[xiv]; and, other alternatives including the Alternative Dispute Resolution Act of 1998 (28 USCA § 651. et seq.).[xv] Clearly, the Supreme Court did not issue a broad ban on judicial review of arbitration awards - "We express no opinion on these matters beyond leaving them open for Hall Street to press on remand."[xvi]

The California Supreme Court in Cable Connections, Inc v. DirecTV, Inc., 44 Cal.4th 1334, 190 P.3d 586 (2008) recently took a different tact in the context of the California Arbitration Act, which is very similar to the Arizona statute (and the Uniform Act). Similar to the FAA and the Uniform/Arizona Act, the CAA allows judicial review to vacate or modify an arbitration award under the following circumstances: (1) where the award was procured by corruption, fraud or undue means; (2) issued by corrupt arbitrators; (3) affected by prejudicial misconduct on the part of the arbitrators; or (4) in excess of the arbitrators' powers.[xvii]

In Cable Connections, Inc. the California Supreme Court decided that California's rule would be that parties in arbitration may obtain judicial review of the merits of an arbitration award by express agreement. The Court held that the following clause, providing for judicial review of an arbitrator's decision, was enforceable under state law: "The arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error." The California Supreme Court reasoned: "[T] failure to provide for [traditional judicial review] by statute does not mean the parties themselves may not do so by contract."[xviii] "If the parties constrain the arbitrators' authority by requiring a dispute to be decided according to the rule of law and make plain their intention that the award is reviewable for legal error, the general rule of limited review has been displaced by the parties' agreement."[xix] The Court went on to state: "Accordingly, policies favoring the efficiency of private arbitration as a means of dispute resolution must sometimes yield to its fundamentally contractual nature, and to the attendant requirement that arbitration shall proceed as the parties themselves have agreed."[xx] In sum, noted the Court, objections to expanded judicial review "are outweighed by the freedom of contract that is fundamental to arbitration..."[xxi]

Very significant in the analysis of the California Supreme Court was its emphasis on the need for express language granting judicial review of the arbitrator's decision. In approving the language quoted above, the Supreme Court distinguished the provision before it from other similar provisions that had come before the California appellate courts in recent years, which had been rejected as being too vague or too implicit to create the right to appellate review. Examples of those cases are Baize v. Eastridge Companies, LLC,[xxii] which included the phrases "the arbitrator shall apply California law" and "shall be constrained by the rule of law"; and Marsch v. Williams,[xxiii] California law "shall govern the interpretation and effect" of the contract.

Although the Arizona Court of Appeals has stated that a decision of an arbitrator on a question of fact or of law is final and conclusive, except when they conflict with the express guidelines or standards set forth or adopted in the arbitration agreement,[xxiv] Arizona appellate courts have not addressed these specific issues. Thus, even though the Smitty's Super-Valu language may suggest a position consistent with the California Supreme Court in Cable Connections, we do not know what the Arizona appellate courts will decide on this issue. Nevertheless, the lesson of these cases is clear: If you want to have the potential right to appeal an arbitration award, you should do the following:

  • You should make sure that you do not include a provision that the matter is to proceed under the Federal Arbitration Act; rather, make sure it is to proceed under the state's version of the Uniform Act or, maybe even better, the California Arbitration Act; and,
  • You should make sure the judicial review provision is very explicit. Clauses that are the slightest bit vague stand to be rejected.

 


 

[i] 1956 Uniform Arbitration Act (ULA) §§ 1 et seq.; A.R.S. § 12-501, et seq.

[ii] A.R.S. § 12-1512(A)(1-5).

[iii] See Fisher on behalf of Fisher v. National General Ins. Co., 192 Ariz. 366, 965 P.2d 100 (App. 1998) (Arbitrator's decision is generally final and conclusive; the Uniform Arbitration Act provides very limited grounds for the trial court to deny confirmation of an arbitration award.)

[iv] 9 U.S.C.A. §§ 10 and 11.

[v] Pavelich v. Farmers Ins. Co., 127 Ariz. 170, 618 P.2d 1096 (App. 1980) (Trial court can not substitute its view of evidence for that of arbitrator) and Hirt v. Hervey, 118 Ariz. 543, 578 P.2d 624 (App. 1978) (same).

[vi] Verdex Steel & Const. Co. v. Bd. of Supvr., Maricopa County, 19 Ariz. App. 547, 509 P.2d 240 (1973) (Even though a court reviewing an arbitration award might consider some rulings erroneous, the rulings are binding unless they result in an improper expansion of the arbitrator's powers.).

[vii] Arizona cases on this point include Valdiviezo v. Phelps Dodge Hidalgo Smelter, Inc., 995 F. Supp. 1060 (D. Ariz. 1997) (Arbitration is a matter of contract and a party cannot be required to arbitrate any dispute which he has not agreed to arbitrate.) and Smitty's Super-Valu, Inc. v. Pasqualete, 22 Ariz. App. 178, 525 P.2d 309 (1974) (The boundaries of the arbitrator's powers are defined by the agreement of the parties.).

[viii] Moncharsh v. Heily & Blase, 3 Cal. 4th 1, 8-9, 832 P.2d 899, 902, 10 Cal. Rptr. 2nd 183, 186 (1992) (citations omitted).

[ix] See, Hall Street Associates, LLC v. Mattel, Inc., --- U.S.---, 128 S. Ct. 1396, 1402 (2008) (arbitration agreements are on equal footing with all other contracts); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947 (1995) ("...[T]he basic objective [of arbitration agreements is] to ensure that commercial arbitration agreements, like other contracts, are enforced according to their terms...and according to the intentions of the parties."); and Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 625 (1985) (the Federal policy served by the FAA is "at bottom a policy guaranteeing the enforcement of private contractual arrangements.").

[x] Canon School Dist No. 50 v. WES Const. Co., Inc., 180 Ariz. 148, 882 P.2d 1274 (1994) and Old Republic Ins. Co. v. St. Paul Fire & Marine Ins. Co., 45 Cal App. 4th 631, 638 (1996) ("the primary purposes of arbitration, quicker results and early finality").

[xi] See, e.g. Moncharsh, 3 Cal. 4th 1, 10-12, 832 P.2d 899 ("arbitrators, unless specifically required to act in conformity with rules of law may base their decision upon broad principles of justice and equity and in doing so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action..."; judicial deference to an arbitrator's findings of fact and application of law is based on the fact that the parties to the agreement knowingly take the risk of such error as a "trade off" in order to obtain speedy decisions.). See also Moshonov v. Walsh, 22 Cal. 4th 771, 775-777 (2000) ("When parties contract to resolve their disputes by private arbitration, their agreement ordinarily contemplates that the arbitrator will have the power to decide any questions .... Inherent in that power is the possibility the arbitrator may err in deciding some aspect of the case. Arbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral awards may not ordinarily be vacated because of such an error for the arbitrator's resolution of theses issues is what the parties bargained for in the arbitration agreement.").

[xii] Interestingly, before the Supreme Court's Hall Street decision, the Federal Circuits were split on the issue - 3 agreeing with unenforceability (Eighth, Ninth and Tenth Circuits) and 5 holding that the parties could expand review by contract (First, Third, Fourth, Fifth, and Sixth Circuits). (128 S. Ct. 1403, fn. 5.)

[xiii] Id. at 1406.

[xiv] Id.

[xv] Id. at 1407.

[xvi] Id.

[xvii] Code Civ. Proc., § 1286.2(a)(4).

[xviii] 44 Cal. 4th at 1357, 109 P.3d at 601-02, emphasis in original.

[xix] 44 Cal. 4th at 1355, 109 P.3d at 600, emphasis in original.

[xx] 44 Cal. 4th at 1358, 109 P.3d at 602, quoting Vandenberg v Superior Court, 21 Cal App 4th 815, 831 (1999). (Emphasis in original.)

[xxi] 44 Cal. 4th at 604, 109 P.3d at 1361.

[xxii] 142 Cal App. 4th 293 (2006).

[xxiii] 23 Cal App. 4th 238, 245 (1994).

[xxiv] See Smitty's Super-Valu, note 7.

 Cal App. 4th 293 (2006).

[xxiii] 23 Cal App. 4th 238, 245 (1994).

[xxiv] See Smitty's Super-Valu, note 7.