MEMORANDUM OPINION
These two cases arise from identical underlying facts. In Civil Action 09-cv-1483 (RBW), the petitioners, Contech Construction Products, Inc. and Patrick Harlow (collectively “Contech”), petition the Court to “vacate a portion of [a] [pjartial [Arbitration] Award” (“Partial Award”) rendered in favor of the respondent, Werner Heierli (“Heierli”), on May 7, 2009. Petition to Vacate a Portion of the Arbitration Award (“Contech’s Pet. to Vacate”) at 1-5. In response, Heierli opposes Contech’s petition and has filed a cross-petition seeking confirmation of the Partial Award. Subsequently, on November 12, 2009, a final arbitration award was rendered in favor of Heierli, along with interest, attorneys fees, and costs (“Final Award”). Then, on November 20, 2009, Heierli instituted the second case, Civil Action 09-cv-2204, petitioning the Court to confirm the Final Award. Petition and Motion of Werner Heierli to Confirm Arbitration Award (“Heierli’s Pet. to Confirm”) at 1. Contech opposes the petition to confirm the Final Award and has cross-petitioned to vacate the Final Award. Memorandum In Opposition to the Petition of Werner Heierli to Confirm Arbitration Award and Cross-Petition of Contech Construction Products Inc. to Vacate the Arbitration Award (“Contech’s Cross-Pet. to Vacate”) at 1. Accordingly, both cases involve the same parties and their resolution turns on the question of whether the two awards entered by the arbitrator are enforceable.
I. Background 1
A. Civil Action 09-CV-H88
Contech Construction Products, Inc. is the sole majority shareholder of BEBOTech Corporation (“BEBOTech”) and Patrick Harlow is the President of BEBOTech’s Board of Directors. Contech’s Pet. to Vacate ¶ 8. Werner Heierli is the sole minority shareholder of BEBOTech. Id.
Contech and Heierli entered into a Stockholders’ Agreement and several other related agreements on May 2, 2003. Id. ¶ 9. The agreements contain identical dispute resolution provisions requiring the parties to “attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation ... failing which the parties shall endeav- or to resolve any dispute ... by mediation under the CPR Mediation procedure.” Id., Ex. A at 12. If negotiations and mediation are unsuccessful, the dispute resolution clauses require the parties to arbitrate “[a]ny controversy or claim arising out of or relating to [the agreements in the International Institute for Conflict Prevention and Resolution (“CPR”) ] ... in accordance with the CPR Rules for Non-Administered Arbitration.” Id. The agreements also provide that any arbitration proceedings will be held in Washington, D.C. Id.
On March 23, 2007, after unsuccessful attempts to negotiate and mediate a dispute between the parties, Heierli filed an arbitration demand against Contech “asserting individual and derivative claims for breach of contract and breach of fiduciary duty”. Id. ¶ 13. On May 7, 2009, Arbitrator Nancy Lesser (the “Arbitrator”) issued a Partial Award finding that: (1) Contech had breached its contractual duties to Heierli; (2) Contech had breached its fiduciary duties to Heierli; (3) Heierli was entitled to at least the minimum amount of the value of his interest (his shares) in BEBOTech pursuant to the formula adopted in the Stockholders’ Agreement, upon exercise of his “Put Option” in that agreement; (4) Contech could not include certain charges and fees in determining Heierli’s share value under the Stockholders’ Agreement formula; and (5) Heierli was permitted to petition for an interim award of “reasonable attorney’s fees and costs in proceedings to be scheduled following the issuance of [the] Partial Award.” Id., Ex. E (Partial Award) at 34-35. However, the Arbitrator also found that Heierli had failed to prove that he suffered any compensatory damages or that he was entitled to punitive damages as a result of the breach. Id., Ex. E (Partial Award) at 33.
Contech filed a Motion for Reconsideration of the Partial Award with the Arbitrator on May 22, 2009, requesting that she reconsider and withdraw her award of attorneys’ fees and costs, arguing that the Arbitrator did not have the authority to make such awards under either the CPR rules or Delaware law.
2
Contech’s Pet. to Vacate ¶ 18; Heierli’s Memorandum in Op
B. Civil Action 09-cv-220í
In addition to the dispute resolution clause, the parties’ Stockholders’ Agreement contained “put” and “call” options which accorded Heierli the option of selling his BEBOTech shares to Contech at a price calculated pursuant to a formula specified in the Stockholders’ Agreement, and Contech had the option to purchase Heierli’s shares at a price determined by a different formula specified in the Agreement. Contech’s Cross-Pet. to Vacate, Ex. A (Stockholders’ Agreement) § 4.
3
On May 18, 2009, shortly after the Arbitrator issued her Partial Award finding that Con-tech had breached its fiduciary duties to Heierli, Heierli exercised his put option. Statement of Points and Authorities In Support of Heierli’s Petition and Motion to Confirm Arbitration Award (“Heierli’s Mem. to Confirm”) at 3. The parties, however, disagreed on the “calculated purchase price” offered by Contech,
id.,
and Heierli then filed a request with the Arbitrator for an emergency hearing on the “put price,” Contech’s Cross-Pet. to Vacate at 5. “Consequently, the Arbitrator set additional hearing dates [of] October 7 and 8, 2009, for the purpose of determining whether Contech had violated the Partial Award and the Stockholders Agreement; the parties appeared before the Arbitrator on those dates and presented witness testimony, documentary evidence and argument.” Heierli’s Mem. to Confirm at 3. Contech had objected to the Arbitrator conducting any additional hearings, however, claiming that the issue of the appropriate price for the exercise of the put option was outside the scope of the issues origi
II. Analysis
A. The Partial Award
Contech argues that under the 2005 version of the CPR Rules the Arbitrator’s power to award attorneys’ fees and costs under CPR Rules 16.2 and 16.3 is limited by CPR Rule 10.3, which states:
4
“[t]he Tribunal may grant any remedy or relief, including but not limited to specific performance of a contract, which is within the scope of the agreement of the parties and permissible under the law(s) or rules of law applicable to the dispute.” Con-tech’s Pet. to Vacate ¶¶ 22-23. Thus, according to Contech, the Arbitrator only had the authority to award attorneys’ fees and costs under CPR Rule 16.3 that were independently permissible under Delaware law.
Id.
¶¶ 24-25. Contech consequently maintains that the award of attorneys’ fees and costs to Heierli in this case was impermissible under Delaware law because Heierli was not a prevailing party due to his failure to prove recoverable damages.
Id.
¶ 33-34. This, according to Contech, precluded the Arbitrator from having “jurisdiction, authority, or power” to make the awards because the American Rule only allows prevailing parties to recover attorneys’ fees and costs and Heierli was not a prevailing party.
Id.
¶ 26;
see Alaska Elec. Pension, Fund v. Brown,
Contech also contends that under the District of Columbia Uniform Arbitration Act (the “D.C. UAA”), which it maintains governs the arbitration of the parties’ dispute, an arbitrator can only award attorneys’ fees and costs if the parties expressly agree that the arbitrator has the authority to do so. Id. ¶¶ 30-31. And Contech argues that since its agreements with Heierli did not contain an express provision allowing the Arbitrator to award attorneys’ fees and costs, she lacked “jurisdiction, authority, or powers” to make such an award. Id. ¶ 32.
Furthermore, Contech claims that the Arbitrator should have dismissed Heierli’s breach of fiduciary duty claim as it was preempted by his identical breach of contract claim and Delaware law prohibits parties from pursuing a breach of fiduciary duty tort claim for conduct that allegedly breached an agreement between the parties “because contract claims preempt tort claims.” Id. ¶¶ 38-40. Therefore, according to Contech, “[t]he Arbitrator exceeded her jurisdiction by awarding attorneys’ fees and costs” because Heierli’s breach of fiduciary duty claims “were barred as a matter of Delaware law.” Id. ¶ 41.
Heierli argues that Contech’s petition to vacate the arbitration award is procedurally defective and should be dismissed. Heierli’s Opp’n at 5. Heierli maintains that Contech, instead of filing a “Petition,”
id.,
should have sought to vacate the arbitration award by filing a motion to vacate the award,
id.
at 6-7. Heierli further argues that Contech is barred by the doctrine of judicial estoppel from challenging the Arbitrator’s attorneys’ fees and costs awards because its argument that the Arbitrator lacked authority to make the awards is inconsistent with the arguments it advanced during the arbitration hearing.
Id.
at 9-10. Heierli also contends that Con-tech waived its challenge to the Arbitrator’s jurisdiction to award attorneys’ fees and costs when it failed to raise the challenge during the arbitration proceedings.
Id.
at 10-12. Heierli further argues that the Court must defer to the Arbitrator’s determination regarding her jurisdiction because the parties in this case intended for the Arbitrator to determine the scope of her jurisdiction.
Id.
at 12-14. Heierli posits that the Federal Arbitration Act (“FAA”), not the D.C. UAA, governs the parties’ dispute and that Contech is judi
Heierli also requests that the Court award him costs and attorneys’ fees for responding to Contech’s petition. Id. at 32-34. Heierli maintains that Contech’s challenge is a “presumptively unjustified” challenge to the merits of the awards. Id. at 32. Heierli opines that the Court should use its equitable powers to award him attorneys’ fees and costs against Con-tech because it unjustifiably refused to abide by the arbitration award. Id. 9
1. The Procedural Challenge to the Petitioner’s Petition
Under the FAA,
10
an application to vacate an arbitration award “shall be made and heard in the manner provided by law for the making and hearing of motions.” 9 U.S.C. § 6 (2006).
11
The statute provides no other process for vacating an arbitration award and therefore the motions process is the exclusive means of pursuing such relief.
Id.
Thus, the FAA does not allow a party to initiate a challenge to an arbitration award by filing a complaint or a petition to vacate the award.
O.R. Sec., Inc. v. Prof'l Planning Assocs., 857
F.2d 742, 745-46 (11th Cir.
Here, Contech has improperly challenged the arbitration award by filing a petition to vacate the award rather than a motion accompanied by a memorandum of points and authorities.
See O.R. Sec., Inc.,
2. The Respondent’s Judicial Estoppel Challenge
The doctrine of judicial estoppel bars “a party from asserting a position [in court] proceeding^] that is [clearly inconsistent with] a position previously taken in the same or earlier proceedings.”
Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,
Here, Contech is not attempting to advance arguments inconsistent with arguments it made during the arbitration proceedings. In fact, Contech has con
3. The FAA’s Applicability to Judicial Review of the Parties’ Dispute
The FAA governs contracts to arbitrate disputes involving interstate commerce. 9 U.S.C. §§ 1-2. “[T]he intent of the contracting parties to apply state arbitration rules or law to arbitration proceedings [and opt out of the applicability of the FAA] must be explicitly stated in the contract and ... a general choice of law provision does not evidence such intent.”
Jung v. Ass’n of Am. Med. Colls.,
Contech has not adequately explained why the D.C. UAA rather than the FAA governs judicial review of the parties’ arbitration of their dispute. The Court assumes that Contech is asserting that the provision of the dispute resolution clause which states: “[a]ny mediation or arbitration proceedings shall occur in Washington, D.C.,” Contech’s Pet. to Vacate, Ex. A (Stockholders’ Agreement) ¶ 7.11, Ex. B (Management Services Agreement) ¶ 10(b), Ex. C (Sales Representative Agreement) ¶ 14(b), expresses an agreement between the parties to opt out of the FAA. In analogous situations, however, courts have found that even a choice of law provision indicating that a particular jurisdiction’s substantive law will govern the agreement does not amount to an express statement to opt out of the FAA.
See, e.g., Mastrobuono v. Shearson Lehman Hutton, Inc.,
4. The Applicability of Delaware Substantive Law to the Arbitral Resolution of the Parties’ Dispute
Neither party disputes that Delaware law governs the administration and interpretation of the agreements between the parties because both the Stockholders’ Agreement and the Management Services Agreement contain a choice of law provision invoking Delaware substantive law. 13 Contech’s Pet. to Vacate, Ex. A (Stockholders’ Agreement) ¶ 7.6, Ex. B (Management Services Agreement) ¶ 10(a), Ex. C (Sales Representative Agreement) ¶ 14(a). In its Petition to Vacate the Partial Award, Contech stated, “[i]n this case, the law of Delaware is the applicable rule of law because it was expressly selected by the parties in the [Stockholders’, Management Services, and Sales Representative] Agreements.” Contech’s Pet. to Vacate at 5. And Heierli agreed in his Memorandum in Opposition to the Petition to Vacate that Delaware law governed the parties’ dispute. See Heierli’s Opp’n at 13 & n. 10. Moreover, in the second action, Heierli requested pre-judgment interest based on the argument that it is mandatory under Delaware law, Heierli’s Mem. to Confirm at 7, and Contech did not contest the applicability of Delaware law on this issue. The Court therefore concludes that Delaware substantive law governs the arbitral resolution of the parties’ dispute.
5. Whether the Partial Arbitration Award Should be Vacated
Under the FAA, “judicial review of arbitral awards is extremely limited.”
Kanuth v. Prescott, Ball & Turben, Inc.,
a. Whether the Parties Intended for the Arbitrator to Determine the Scope of Their Agreement to Arbitrate
When a dispute involving parties to an agreement with an arbitration clause is brought to a court for resolution, it is the court’s obligation to determine whether the parties agreed to submit a particular issue to arbitration unless the parties have made unmistakably clear that they intended for the arbitrator, rather than the court, to determine the arbitrator’s jurisdiction.
First Options of Chi., Inc. v. Kaplan,
The parties here clearly intended to have the Arbitrator determine the scope of her own jurisdiction. Under Delaware law, the incorporation of arbitral rules in the agreement giving the arbitrator the ability to determine the scope of the arbitrator’s own jurisdiction, combined with an arbitral clause providing for arbitration of all disputes, demonstrate clear unmistakable proof that the parties intended the arbitrator to determine the scope of their agreement.
See James & Jackson, LLC v. Willie Gary, LLC,
The Court can find no reason to reject the Arbitrator’s conclusion that she had jurisdiction to award attorneys’ fees and costs. Thus, Contech position that the Arbitrator acted beyond the parameters of the agreement, the arbitration rules, and Delaware law in awarding attorney’s fees,
b. Whether the Arbitrator Exceeded Her Powers
A court may set aside an arbitration award “where the arbitrator! ] exceeded [her] power[ ], or so imperfectly executed [it] that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4). However, “[a]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of [her] authority, that a court is convinced [she] committed serious error does not suffice to overturn [her] decision.”
Kanuth,
Having found that the Arbitrator had the power to determine her jurisdiction, the essence of Contech’s remaining arguments, despite its contentions to the contrary, Contech’s Pet. to Vacate Reply at 7-8, can only be construed as a challenge based on the Arbitrator’s misinterpretation of Delaware law and the CPR rules in awarding attorneys’ fees and costs. Con-tech’s Pet. to Vacate ¶¶ 22-29. The Arbitrator found that Delaware law imposes strict penalties, including the award of attorneys’ fees and costs, in order to discourage breaches of fiduciary duties.
Id.,
Ex. D (Partial Award) at 34. She therefore imposed attorneys’ fees and costs against Contech in regards to the breach of its fiduciary duty.
Id.
Alternatively, the Arbitrator found that the CPR rules “provide an independent basis to award both attorneys!’] fees and the costs of the proceeding.”
Id.
Contech’s argument that the Arbitrator lacked the power to award attorneys’ fees and costs under CPR Rule 16.2 because an arbitrator’s authority to make awards under that rule is limited by CPR Rule 10.3,
14
Contech’s Pet. to Vacate ¶¶ 22-26, in addition to its argument that the arbitrator misapplied
Thorpe by Castleman v. CERBCO,
Irrespective of whether Contech is challenging the Partial Award under the “manifest disregard of the law” standard, the fact that the Arbitrator may have misapplied Delaware law or the CPR Rules is not a basis for vacating the award under the FAA.
See LaPrade v. Kidder, Peabody & Co.,
B. The Final Award
In his Petition to Confirm the Final Award, Heierli asserts that this Court must confirm the arbitration award because “[t]he parties agreed to arbitrate their dispute and agreed that judgment
In response, Contech offers three bases upon which this Court should vacate the Final Award: (1) the Arbitrator “exceeded her jurisdiction” by deciding a new dispute that had not been processed through the dispute resolution procedure the parties agreed to before a dispute would be submitted to arbitration, Contech’s Cross-Pet. to Vacate at 6-10; (2) the Arbitrator “exceeded her jurisdiction” by deciding the value of Heierli’s shares as of May 2009 rather than assessing their value period between March 2006 and February 2007, id. at 11-12; and (3) the Arbitrator acted in manifest disregard of the express terms of the Stockholders’ Agreement by wrongfully rejecting Contech’s use of Generally Accepted Accounting Principles (“GAAP”) to determine the purchase price Heierli was entitled to receive for his BEBOTeeh shares, id. at 12-14. 16
Heierli responds with a series of alternate grounds upon which the Court should reject Contech’s two arguments that the Arbitrator “exceeded her jurisdiction.” First, Heierli asserts that Contech’s argument that Heierli failed to satisfy a condition precedent to the arbitration of the parties’ dispute, i.e., participation in negotiations and mediation, is an argument challenging a decision of “procedural arbitrability,” which is an issue subject to the Arbitrator’s discretion that is not reviewable by this court. Plaintiffs Opposition to Defendant’s Cross-Petition to Vacate Arbitration Award, and Reply to Defendant’s Opposition to Petition to Confirm Arbitration Award (“Opp’n to Cross-Pet. & Reply”) at 14-15. Failing the success of that position, Heierli argues that even if the challenge “raises question of ‘substantive’ rather than ‘procedural’ arbitrability,” the question of arbitrability is one the parties agreed would be decided by the Arbitrator.
Id.
at 15. As support for this position, Heierli notes that the CPR Rules provide that “[t]he Tribunal [, i.e., the Arbitrator] shall have the power to hear and determine challenges to its jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement,”
id.
at 16 (citing CPR Rule 8.1), and posits that the parties through their Stockholders’ Agreement demonstrated their unmistakable intention “to have the Arbitrator determine her own jurisdiction by providing that, ‘[a]ny controversy or claim arising out of or relating to this Agreement or the breach, termi
1. Standard of Review in Determining Whether the Final Award Should be Confirmed
The Court’s authority to confirm the final arbitral award in this case is governed by section 9 of the FAA, which provides the following:
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, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.
9 U.S.C. § 9.
The Supreme Court has held that the grounds enumerated in Sections 10(a) and 11 of the FAA are the exclusive means for vacating, modifying, or correcting an arbitral award.
Hall Street Assocs., LLC v. Mattel, Inc.,
In applying these standards to determine whether vacatur or modification of the Final Award is warranted, the Court reiterates that it must remain mindful of the principle that “judicial review of arbitral awards is extremely limited,” and that this Court “do[es] not sit to hear claims of factual or legal error by an arbitrator” in the same manner that an appeals court would review the decision of a lower court.
Teamsters Local Union No. 61,
a. Challenge to the Arbitrator’s Jurisdiction to Make the Final Award
The Arbitrator “determined that [she] had jurisdiction to resolve [the issues presented in reaching the Final Award, finding that] they represented a continuation of the parties’ existing dispute regarding the appropriateness of various expense categories Contech sought to deduct from the [earnings before interest, taxes, depreciation and amortization], matters which were previously addressed in the first hearing,” Contech’s Cross-Pet. to Vacate, Ex. J (Final Award) at 6, which was held in conjunction with the issuance of the Partial Award. The Court is precluded from holding that the “arbitrator! ] exceeded [her] power” under 9 U.S.C. § 10 “[a]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of [her] authority....”
Kanuth,
b. Conteeh’s Challenge that the Arbitrator Acted in Manifest Disregard of the Law
Notwithstanding the Court’s previous notation regarding the status of the “manifest disregard of the law” standard following Hall Street Associates, Con-tech has nevertheless failed to satisfy the standard.
To prevail under the “manifest disregard of the law” standard, [the movant] must demonstrate “more than error or misunderstanding with respect to the law.” Rather, it must show that “(1) the arbitrators knew of a governing legal principle^] yet refused to apply it or ignored it altogether[,] and (2) the law ignored by the arbitrators was well[-]defined, explicit, and clearly applicable to the case.”
Republic of Argentina,
The Arbitrator framed her decision regarding the propriety of various expenses Contech claimed were mandated by GAAP as follows:
First, as I noted in the Partial Award, the contract, not GAAP, controls the calculation of the value of the [s]hares. The calculation is based on [earnings before interest, taxes, depreciation and amortization]. [Earnings before interest, taxes, depreciation and amortization are] not defined at all in GAAP. It is defined in the [Stockholders’ Agreement]. The central focus of this inquiry is not, therefore, what GAAP requires but first and foremost, what the [Stockholders’ Agreement] requires.
Contech’s Cross-Pet. to Vacate, Ex. J (Final Award) at 6. The Arbitrator therefore did not state that applying GAAP was proper and then rejected its application. Instead, she considered the other language of the Stockholders’ Agreement, including the sample calculation of earnings before interest, taxes, depreciation and amortization, to be controlling. Id.
In addition, the Arbitrator based her refusal to apply GAAP to the purchase price on “extensive testimony and argument by both parties, including the testimony of competing experts.” Opp’n to Cross-Pet. & Reply at 28. Thus, the Court cannot conclude that she “stray[ed] from interpretation and application of the agreement and effectively dispense[d] [her] own brand of industrial justice.”
Stolt-Nielsen S.A. v. AnimalFeeds Int’l
To show manifest disregard of the law, “there must be no colorable support for the [Arbitrator’s] award in the record; if it seems that the [Arbitrator] rejected [the movant’s] argument after fair consideration, then [the movant’s] showing falls short, and the Court must enter the [Arbitrator’s] judgment.”
LaPrade,
2. The Award of Pre-Judgment Interest on the Judgment
“Interest is awarded in Delaware as a matter of right and not of judicial discretion.”
Moskowitz v. Mayor of Wilmington,
III. Conclusion
For the foregoing reasons, the Court grants Heierli’s Cross-Petition to enforce the Partial Award and his Petition to Confirm the Final Award, and denies Con-tech’s Petition to Vacate the Partial Award and its Cross-Petition to Vacate the Final Award. 19
Notes
. The following facts are undisputed, except where noted otherwise.
. The Court notes that neither party disputes that Delaware law governs the administration and interpretation of the agreements between the parties, as each agreement contained a choice of law provision invoking Delaware law. Contech’s Pet. to Vacate, Ex. A (Stockholders’ Agreement) ¶ 7.6, Ex. B (Management Services Agreement) ¶ 10(a), Ex. C (Sales Representative Agreement) ¶ 14(a).
. The Stockholders' Agreement describes the "put” option in Section 4.1(a):
At any time hereafter, Heierli, in his discretion, shall have the option, but no obligation, to sell all ... of his Shares in the Company to Contech (the "Heierli Put Option”), and Contech shall be obligated to purchase such Shares.
The Stockholders' Agreement also describes the "call” option in Section 4.2(a):
Subject to the terms of Section 4.9(c), at any time after June 30, 2006, Contech shall have an annual right, exercisable only in the month of July, to purchase, and Heierli shall be obligated to sell, all, but not less than all, of Heierli’s Shares (the "Contech Call”).
Contech’s Cross-Pet. to Vacate, Ex. A at 5, 7.
. Because the arbitration proceeding was filed prior to the 2007 amendment to the CPR Rules, the 2005 version of the CPR Rules governed the arbitration. Contech’s Pet. To Vacate, Ex. D (2005 Arbitration Rules) & Ex. F (Clerical Amendment to Partial Award). The 2005 version of Rule 16.2 states:
The Tribunal shall fix the costs of arbitration in its award. The costs of arbitration include:
a. The fees and expenses of members of the Tribunal;
b. The costs of expert advice and other assistance engaged by the Tribunal;
c. The travel and other expenses of witnesses to such extent as the Tribunal may deem appropriate;
d. The costs for legal representation and assistance and experts incurred by a party to such extent as the Tribunal may deem appropriate;
e. The charges and expenses of CPR with respect to the arbitration;
f. The costs of a transcript; and
g. The costs of meeting and hearing facilities.
Heierli's Opp’n, Ex. 12 (CPR Rules). The 2005 version of Rule 16.3 states:
Subject to any agreement between the parties to the contrary, the Tribunal may apportion the costs of arbitration between or among the parties in such manner as it deems reasonable, taking into account the circumstances of the case, the conduct of the parties during the proceeding, and the result of the arbitration.
Id.
. “Delaware courts have long-recognized the ‘common corporate benefit’ doctrine as an exception to the American Rule to provide for reimbursement of attorney’s fees and expenses in corporate litigation.”
Alaska Elec. Pension,
(i) the suit was meritorious when filed; (ii) the action producing benefit to the corporation was taken by the defendants before a judicial resolution was achieved; and (iii) the resulting corporate benefit was causally related to the lawsuit.
Id.
. Contech did not respond to Heierli’s argument regarding the applicability of the FAA in its Reply Memorandum.
. Like the FAA, the D.C. UAA allows a court to vacate an arbitral award when an arbitrator exceeds her powers. See D.C.Code § 16-4423(a)(4) (2009) ("[T]he court shall vacate an award made in the arbitration proceeding if ... [a]n arbitrator exceeded the arbitrator’s powers.”).
. Contech expressly denies that it challenges the Partial Award under the "manifest disregard of the law” standard. See Petitioners’ Reply Memorandum In Support of the Petition to Vacate A Portion of the Arbitration Award ("Contech’s Pet. to Vacate Reply”) at 7-8 ("Respondent’s attempt to mischaracterize Petitioners’ challenge as one under the 'manifest disregard’ standard must fail.”). However, the Court will nevertheless address this issue after Heierli raised the argument in his Memorandum in Opposition to the Petition to Vacate.
. At this time the Court declines to address the issue of whether the plaintiff is entitled to attorneys’ fees and costs in regards to Con-tech’s Petition to Vacate a Portion of the Arbitration Award and Heierli’s Petition to Confirm Arbitration Award, as the issue has not been sufficiently briefed by the parties. Therefore, Heierli may file a separate motion with the Court requesting such attorneys’ fees and costs. An order to this effect will be issued contemporaneously with the issuance of this memorandum opinion.
. The Court notes that because the parties’ contracts impact interstate commerce, the FAA controls absent a clear indication by the parties to the contrary.
Jung v. Ass’n of Am. Med. Colls.,
. The D.C. UAA also requires that a petition to vacate an arbitration award be filed as a motion in accordance with the rules of the court in which the motion is brought. D.C.Code § 16-4405(a).
. Section 7.11 of the Stockholders’ Agreement reads: “Any mediation or arbitration proceedings shall occur in Washington, D.C., USA, unless otherwise agreed.” Contech's Pet. to Vacate, Ex. A at 12.
. Delaware substantive law was applied by the Arbitrator in the two decisions at issue in these cases. See generally Heierli’s Opp’n, Ex. 1 (Partial Award); Contech's Cross-Pet. to Vacate, Ex. J (Final Award).
. CPR Rule 10.3 states: "The Tribunal may grant any remedy or relief, including but not limited to specific performance of a contract, which is within the scope of the agreement of the parties and permissible under the law(s) or rules of law applicable to the dispute.” Contech's Pet. To Vacate, Ex. D (CPR Rules).
. Heierli contends that Contech is "trying to argue that the Arbitrator’s decision was in 'manifest disregard of the law....’ ” Heierli's Opp’n at 17. After the Supreme Court’s decision in
Hall Street Associates, LLC v. Mattel, Inc.,
[The petitioner] relies on the non-statutory ground that an arbitral award may be vacated where the award was issued in "manifest disregard of the law.” Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,481 F.3d 813 , 816 (D.C.Cir.2007). A question remains, however, as to whether this basis for vacating an arbitral award survived the Supreme Court’s recent decision in Hall Street Associates v. Mattel, Inc., 552 U.S.576, 128 S.Ct. 1396 ,170 L.Ed.2d 254 (2008). There, the Supreme Court concluded that Sections 10(a) and 11 of the FAA "provide the ... exclusive grounds for expedited vacatur and modification,”552 U.S. at 584 ,128 S.Ct. 1396 (emphasis added), but acknowledged that its "vague phrasing” of the "manifest disregard of the law” standard in prior precedents has caused confusion amongst the various circuit courts of appeals, with some circuits viewing that standard as being encompassed within the grounds explicitly listed under the FAA (specifically Sections 10(a)(3) and (4)), id. at 585,128 S.Ct. 1396 , while others, including the District of Columbia Circuit, have viewed the standard as independent of the grounds explicitly enumerated under Section 10(a), see Lessin,481 F.3d at 816 ("In addition to the grounds under the [FAA] ... on which an arbitration award may be vacated, an award may be vacated only if it is 'in manifest disregard of the law.' "). The Supreme Court remained silent, however, as to which approach is correct, and neither the Supreme Court nor the District of Columbia Circuit have yet to weigh in on whether Hall Street Associates affects any of their respective precedents. See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,-U.S. -, -,130 S.Ct. 1758 , 1768, n. 3,176 L.Ed.2d 605 (2010) (declining to decide whether the "manifest disregard of the law” standard survived Hall Street Associates ); Regnery Pub., Inc. v. Miniter,368 Fed.Appx. 148 , 149 (D.C.Cir.2010) (assuming, without deciding, that the “manifest disregard of the law” standard survived Hall Street Associates).
. Contech originally offered an additional basis for vacating the Final Award — that "the Arbitrator acted in manifest disregard of the law by ordering that Contech could not withhold federal taxes from the interest she ordered Contech to pay ... Heierli ..., even if federal tax law required Contech to do so.” Defendant Contech Construction Products Inc.'s Notice of Withdrawal of One Ground for Its Cross-Petition to Vacate (“Contech’s Withdrawal Notice”) at 1-2; see also Con-tech's Cross-Pet. to Vacate at 14. Contech withdrew this argument as "moot” after Heierli provided proof that he had executed the required form "attesting that he is a resident of Switzerland” and therefore the withholding of United States federal income tax by Contech was not required by federal law. Contech's Withdrawal Notice at 1-2.
. Heierli also attacks Contech's challenge to the Final Award, arguing that "Contech abandoned" its challenge to the jurisdictional authority of the Arbitrator "at the October 2009 hearing and, in fact” submitted issues to the Arbitrator, which resulted in "the now-challenged rulings.” Id. at 17. The Court need not address this argument, having decided the issue on other grounds.
. As noted earlier, Contech's manifest disregard of the law challenge originally included a second theory — that the Arbitrator acted in manifest disregard of the law by deciding that Contech could not withhold federal taxes on interest payments made to Heierli in spite of federal tax law. However, Contech has withdrawn this challenge. See supra p. 105, note 11.
. This Memorandum Opinion accompanies the Order that was issued on September 30, 2010 and the Final Order issued contemporaneously with this Memorandum Opinion.