Recently, in Nationwide Mutual Ins. Co. v. Randall & Quilter Reinsurance Co., No. C2-07-120 (S.D. Ohio, Jan. 24, 2008), the U.S. District Court for the Southern District of Ohio examined the scope of a court’s authority to confirm arbitration awards and orders under Section 9 of the Federal Arbitration Act ("FAA").
The underlying arbitration between Randall & Quilter Reinsurance Co. ("R&Q") and Nationwide Mutual Ins. Co. ("Nationwide") involved R&Q's obligations under reinsurance contracts entered into between the parties. The arbitration panel found in favor of Nationwide, which petitioned the district court to confirm the award under Section 9 of the FAA. R&Q opposed, arguing that the court lacked authority under Section 9 to confirm the award in its entirety because it involved certain reinsurance contracts that did not expressly provide the court with authority to review arbitral awards. While some of the reinsurance contracts at issue stated that the panel's award could be confirmed in "any court having jurisdiction," others only provided that the panel's award would be "final and binding" and did not specifically mention judicial confirmation. R&Q also petitioned the court to confirm a purported interim award deeming the arbitration confidential.
Section 9 of the FAA provides that a court may confirm an arbitration award "[i]f the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration…." See 9 U.S.C. § 9. In confirming Nationwide's award in its entirety, the court noted that the U.S. Supreme Court and federal circuit courts have held that courts have the authority under Section 9 to confirm arbitration awards where the contract provides for "final and binding" arbitration. As such, the court held that it had authority to confirm the portions of the award involving contracts that contained "final and binding" language, even though those contracts did not expressly mention judicial confirmation.
The court also denied R&Q's motion to confirm the purported confidentiality order, finding that the umpire's representation during the arbitration that the proceeding "ought" to be confidential and that the panel would "so order it" did not constitute a fully executed confidentiality order, as the agreement was never signed by the panel. Thus, the court found there was nothing for it to confirm. Moreover, the court noted that because the purported confidentiality order was not in writing, it lacked authority under Section 9 of the FAA to confirm it, since the reinsurance contracts at issue required that arbitrator’s decision be "in writing" in order to be confirmed.