N.D. Cal. Weighs In On Split Re Arbitration Consent Statute

Per Polimaster Ltd. v. RAE Systems, Inc., 2009 WL 196169 (N.D. Cal. Jan 13, 2009):

Polimaster and Na & Se contend that the award may not be confirmed because the License Agreement did not contain any consent to the arbitration award being confirmed by a Court. The two provisions of the FAA that provide courts with authority to confirm arbitration awards contain conflicting consent requirements. 9 U.S.C. § 207 instructs that "within three years after an arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration." 9 U.S.C. § 9 is more restrictive:

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award.

In reconciling these two provisions, circuit courts have split with respect to the question of whether consent is required. Compare Daihatsu Motor Co., Inc v. Terrain Vehicles, Inc., 1992 WL133036 at *3 (N.D.Ill.1992), aff'd on other grounds, 13 F.3d 196 (7th Cir.1993) with Phoenix Aktiengeselshaft v. Ecoplas, Inc., 291 F.3d 433 436-38 (2d Cir.2004). The Ninth Circuit has not addressed this issue. However, they [sic] Court finds the Second Circuit's analysis to be persuasive.