Lower courts have defined manifest disregard in multiple ways: a further ground for review beyond section 10, (45) a reference to the section 10 grounds collectively without adding to them, (46) and shorthand for section 10(a)(3) and section 10(a)(4), which authorize vacatur
when arbitrators were "guilty of misconduct" or "exceeded their powers.
In the footnote to this assertion, the authors goes on by emphasizing "I must say that I can at least understand the inevitable doubts and hesitations about such agreements-doubts, that is, as to whether parties should be permitted to restrict review by eliminating grounds for vacatur
found in the FAA.
162) Accordingly, where arbitrators failed to disclose such relationships, the subsequent award would be subject to vacatur
for "evident partiality" because failure to disclose such dealings "might create an impression of possible bias.
The en banc vacatur
has given the Circuit, and the lower courts for that matter, an opportunity to refine previously flawed case law and adopt a standard more in line with a majority of other circuit courts.
In reversing, the Court of Appeals determined that by the time Pitt's appeal reached the Appellate Division, it was moot by reason of Pitt's voluntary vacatur
of the premises and should not have been decided, thereby removing the Appellate Division's dangerous unprecedented ruling.
193) See Brief for Court-Appointed Amicus Curiae Supporting Vacatur
at 10, NFIB, 132 S.
concurring) (expressing doubt "that what the judge actually did, as opposed to what he said, demonstrated an intent to lay the wood to Figueroa or otherwise treat him unfairly" but agreeing with vacatur
and reassignment because "Figueroa is entitled, procedurally, to a cleaner hearing than the one he got").
576 (2008) (holding that the FAA's statutory grounds for judicial modification or vacatur
are the exclusive grounds under which parties can seek expedited review of an arbitration award).
99) In Bartolomeo, for instance, a defendant who had been convicted of a serious crime--homicide--obtained a vacatur
of that conviction despite the fact that he had inculpated himself in the crime, after having been properly advised of his Miranda rights and after having freely and voluntarily agreed to speak with police in the absence of counsel.
137) However, there are also cogent reasons for permitting litigants to cite opinions that were vacated on the merits (138) (that is, to cite vacated opinions for propositions that were repudiated by the vacating court ), as long as the court to which the opinion is being cited is informed that its precedential authority has been undermined by the vacatur
Both federal and Florida arbitration laws provide for postaward confirmation, review, vacatur
, or modification in judicial proceedings.
130) In Tembec III, the court addressed the government's motion to dismiss as well as the government's post-judgment motion seeking reconsideration and vacatur
of the court's decision in Tembec II.