Lead Opinion
delivered the opinion of the Court.
We granted certiorari in this case to decide whether imposing class arbitration on parties whose arbitration clauses are “silent” on that issue is consistent with the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq.
I
A
Petitioners are shipping companies that serve a large share of the world market for parcel tankers — seagoing vessels with compartments that are separately chartered to customers wishing to ship liquids in small quantities. One of those customers is AnimalFeeds International Corp. (hereinafter AnimalFeeds), which supplies raw ingredients, such as fish oil, to animal-feed producers around the world. Animal-Feeds ships its goods pursuant to a standard contract known in the maritime trade as a charter party.
Adopted in 1950, the Vegoilvoy charter party contains the following arbitration clause:
“Arbitration. Any dispute arising from the making, performance or termination of this Charter Party shall be settled in New York, Owner and Charterer each appointing an arbitrator, who shall be a merchant, broker or individual experienced in the shipping business; the two thus chosen, if they cannot agree, shall nominate a third arbitrator who shall be an Admiralty lawyer. Such arbitration shall be conducted in conformity with the provisions and procedure of the United States Arbitration Act [i e., the FAA], and a judgment of the Court shall be entered upon any award made by said arbitrator.” App. to Pet. for Cert. 69a.
In 2003, a Department of Justice criminal investigation revealed that petitioners were engaging in an illegal price-fixing conspiracy. When AnimalFeeds learned of this, it brought a putative class action against petitioners in the District Court for the Eastern District of Pennsylvania, asserting antitrust claims for supracompetitive prices that petitioners allegedly charged their customers over a period of several years.
Other charterers brought similar suits. In one of these, the District Court for the District of Connecticut held that the charterers’ claims were not subject to arbitration under the applicable arbitration clause, but the Second Circuit reversed. See JLM Industries, Inc. v. Stolt-Nielsen S. A., 387
B
In 2005, AnimalFeeds served petitioners with a demand for class arbitration, designating New York City as the place of arbitration and seeking to represent a class of “[a]ll direct purchasers of parcel tanker transportation services globally for bulk liquid chemicals, edible oils, acids, and other specialty liquids from [petitioners] at any time during the period from August 1, 1998, to November 30, 2002.”
The parties selected a panel of arbitrators and stipulated that the arbitration clause was “silent” with respect to class arbitration. Counsel for AnimalFeeds explained to the arbitration panel that the term “silent” did not simply mean that
After hearing argument and evidence, including testimony from petitioners’ experts regarding arbitration customs and usage in the maritime trade, the arbitrators concluded that the arbitration clause allowed for class arbitration. They found persuasive the fact that other arbitrators ruling after Bazzle had construed “a wide variety of clauses in a wide variety of settings as allowing for class arbitration,” but the panel acknowledged that none of these decisions was “exactly comparable” to the present dispute. See App. to Pet. for Cert. 49a-50a. Petitioners’ expert evidence did not show an “inten[t] to preclude class arbitration,” the arbitrators reasoned, and petitioners’ argument would leave “no basis for a class action absent express agreement among all parties and the putative class members.” Id., at 51a.
The arbitrators stayed the proceeding to allow the parties to seek judicial review, and petitioners filed an application to vacate the arbitrators’ award in the District Court for the Southern District of New York. See 9 U. S. C. § 10(a)(4) (authorizing a district court to “make an order vacating the award upon the application of any party to the arbitration . . . where the arbitrators exceeded their powers”); Petition To Vacate Arbitration Award, No. 1:06-CV-00420-JSR (SDNY), App. in No. 06-3474-cv (CA2), p. A-17, ¶ 16 (citing § 10(a)(4) as a ground for vacatur of the award); see also id., at A-15 to A-16, ¶ 9 (invoking the District Court’s jurisdiction under 9 U. S. C. §203 and 28 U. S. C. §§1331 and 1333). The District Court vacated the award, concluding that the arbitrators’ decision was made in “manifest disregard” of the law insofar as the arbitrators failed to conduct a choice-of-law analysis.
AnimalFeeds appealed to the Court of Appeals, which reversed. See 9 U. S. C. § 16(a)(1)(E) (“An appeal may be taken from ... an order . . . vacating an award”). As an initial matter, the Court of Appeals held that the “manifest disregard” standard survived our decision in Hall Street Associates, L. L. C. v. Mattel, Inc.,
We granted certiorari.
A
Petitioners contend that the decision of the arbitration panel must be vacated, but in order to obtain that relief, they must clear a high hurdle. It is not enough for petitioners to show that the panel committed an error — or even a serious error. See Eastern Associated Coal Corp. v. Mine Workers,
B
1
In its memorandum of law filed in the arbitration proceedings, AnimalFeeds made three arguments in support of construing the arbitration clause to permit class arbitration:
“The parties’ arbitration clause should be construed to allow class arbitration because (a) the clause is silent on the issue of class treatment and, without express prohibition, class arbitration is permitted under Bazzle; (b) the clause should be construed to permit class arbitration as a matter of public policy; and (c) the clause would be unconscionable and unenforceable if it forbade class arbitration.” App. in No. 06-3474-cv (CA2), at A-308 to A-309 (emphasis added).
The arbitrators expressly rejected AnimalFeeds’ first argument, see App. to Pet. for Cert. 49a, and said nothing about the third. Instead, the panel appears to have rested
Rather than inquiring whether the FAA, maritime law, or New York law contains a “default rule” under which an arbitration clause is construed as allowing class arbitration in the absence of express consent, the panel proceeded as if it
It is true that the panel opinion makes a few references to intent, but none of these shows that the panel did anything other than impose its own policy preference. The opinion states that, under Bazzle, “arbitrators must look to the language of the parties’ agreement to ascertain the parties’ intention whether they intended to permit or to preclude class action,” and the panel added that “[tjhis is also consistent with New York law.” App. to Pet. for Cert. 49a. But the panel had no occasion to “ascertain the parties’ intention” in the present case because the parties were in complete agreement regarding their intent. In the very next sentence after the one quoted above, the panel acknowledged that the parties in this case agreed that the Yegoilvoy charter party was “silent on whether [it] permitted] or preelude[d] class arbitration,” but that the charter party was “not ambiguous so as to call for parol evidence.” Ibid. This stipulation left no room for an inquiry regarding the parties’ intent, and any inquiry into that settled question would have been outside the panel’s assigned task.
The panel also commented on the breadth of the language in the Vegoilvoy charter party, see id., at 50a, but since the only task that was left for the panel, in light of the parties’ stipulation, was to identify the governing rule applicable in a case in which neither the language of the contract nor any other evidence established that the parties had reached any agreement on the question of class arbitration, the particular wording of the charter party was quite beside the point.
In sum, instead of identifying and applying a rule of decision derived from the FAA or either maritime or New York
III
A
The arbitration panel thought that Bazzle “controlled” the “resolution” of the question whether the Vegoilvoy charter party “permitís] this arbitration to proceed on behalf of a class,” App. to Pet. for Cert. 48a-49a, but that understanding was incorrect.
Bazzle concerned contracts between a commercial lender (Green Tree) and its customers. These contracts contained an arbitration clause but did not expressly mention class arbitration. Nevertheless, an arbitrator conducted class arbitration proceedings and entered awards for the customers.
The South Carolina Supreme Court affirmed the awards. Bazzle v. Green Tree Financial Corp., 351 S. C. 244,
Applying these standards to the case before it, the South Carolina Supreme Court found that the arbitration clause in the Green Tree contracts was “silent regarding class-wide arbitration.” Id., at 263,
“[W]e . . . hold that class-wide arbitration may be ordered when the arbitration agreement is silent if it would serve efficiency and equity, and would not result in prejudice. If we enforced a mandatory, adhesive arbitration clause, but prohibited class actions in arbitration where the agreement is silent, the drafting party could effectively prevent class actions against it without having to say it was doing so in the agreement.” Id., at 266,569 S. E. 2d, at 360 (footnote omitted).
When Bazzle reached this Court, no single rationale commanded a majority. The opinions of the Justices who joined the judgment — that is, the plurality opinion and Justice Stevens’ opinion — collectively addressed three separate questions. The first was which decisionmaker (court or arbitrator) should decide whether the contracts in question were “silent” on the issue of class arbitration. The second was what standard the appropriate decisionmaker should apply in determining whether a contract allows class arbitration. (For example, does the FAA entirely preclude class arbitration? Does the FAA permit class arbitration only under limited circumstances, such as when the contract expressly so provides? Or is this question left entirely to state law?) The final question was whether, under whatever standard is appropriate, class arbitration had been properly ordered in the case at hand.
Justice Stevens concurred in the judgment vacating and remanding because otherwise there would have been “no controlling judgment of the Court,” but he did not endorse the plurality’s rationale. Id., at 455 (opinion concurring in judgment and dissenting in part). He did not take a definitive position on the first question, stating only that “[ajrguably the interpretation of the parties’ agreement should have been made in the first instance by the arbitrator.” Ibid. (emphasis added). But because he did not believe that Green Tree had raised the question of the appropriate decisionmaker, he preferred not to reach that question and, instead, would have affirmed the decision of the State Supreme Court on the ground that “the decision to conduct a class-action arbitration was correct as a matter of law.” Ibid. Accordingly, his analysis bypassed the first question noted above and rested instead on his resolution of the second and third questions. Thus, Bazzle did not yield a majority decision on any of the three questions.
Unfortunately, the opinions in Bazzle appear to have baffled the parties in this case at the time of the arbitration proceeding. For one thing, the parties appear to have believed that the judgment in Bazzle requires an arbitrator, not a court, to decide whether a contract permits class arbitration. See App. 89a (transcript of argument before arbitration panel) (counsel for Stolt-Nielsen states: ‘What [Bazzle] says is that the contract interpretation issue is left up to the arbitrator, that’s the rule in [Bazzle]”). In fact, however, only the plurality decided that question. But we need not revisit that question here because the parties’ supplemental agreement expressly assigned this issue to the arbitration panel, and no party argues that this assignment was impermissible.
Unfortunately, however, both the parties and the arbitration panel seem to have misunderstood Bazzle in another respect, namely, that it established the standard to be applied by a decisionmaker in determining whether a contract may permissibly be interpreted to allow class arbitration. The arbitration panel began its discussion by stating that the parties “differ regarding the rule of interpretation to be gleaned from [the Bazzle] decision.” App. to Pet. for Cert. 49a (emphasis added). The panel continued:
“Claimants argue that Bazzle requires clear language that forbids class arbitration in order to bar a class action. The Panel, however, agrees with Respondents that the test is a more general one — arbitrators must look to the language of the parties’ agreement to ascertain the parties’ intention whether they intended to permit or to preclude class action.” Ibid.
As we have explained, however, Bazzle did not establish the rule to be applied in deciding whether class arbitration is
IV
While the interpretation of an arbitration agreement is generally a matter of state law, see Arthur Andersen LLP v. Carlisle,
A
In 1925, Congress enacted the United States Arbitration Act, as the FAA was formerly known, for the express pur
Whether enforcing an agreement to arbitrate or construing an arbitration clause, courts and arbitrators must “give effect to the contractual rights and expectations of the parties.” Volt, supra, at 479. In this endeavor, “as with any other contract, the parties’ intentions control.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
Underscoring the consensual nature of private dispute resolution, we have held that parties are “‘generally free to structure their arbitration agreements as they see fit.’” Mastrobuono, supra, at 57; see also AT&T Technologies, supra, at 648-649. For example, we have held that parties may agree to limit the issues they choose to arbitrate, see Mitsubishi Motors, supra, at 628, and may agree on rules under which any arbitration will proceed, Volt, supra, at 479. They may choose who will resolve specific disputes. E. g., App. 30a; Alexander v. Gardner-Denver Co.,
We think it is also clear from our precedents and the contractual nature of arbitration that parties may specify with wkom they choose to arbitrate their disputes. See EEOC v. Waffle House, Inc.,
B
From these principles, it follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. In this case, however, the arbitration panel imposed class arbitration even though the parties concurred that they had reached “no agreement” on that issue, see App. 77a. The critical point, in the view of the arbitration panel, was that petitioners did not “establish that the parties to the charter agreements intended to preclude class arbitration.” App. to Pet. for Cert. 51a. Even though the parties are sophisticated business entities, even though there is no tradition of class arbitration under maritime law, and even though AnimalFeeds does not dispute that it is customary for the shipper to choose the charter party that is used for a particular shipment, the panel regarded the agreement’s silence on the question of class arbitration as dispositive. The panel’s conclusion is fundamentally at war with the foundational FAA principle that arbitration is a matter of consent.
In certain contexts, it is appropriate to presume that parties that enter into an arbitration agreement implicitly au
An implicit agreement to authorize class-action arbitration, however, is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate. This is so because class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator. In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes. See Gilmer v. Interstate/Johnson Lane Corp.,
Consider just some of the fundamental changes brought about by the shift from bilateral arbitration to class-action arbitration. An arbitrator chosen according to an agreed-upon procedure, see, e. g., supra, at 667, no longer resolves a single dispute between the parties to a single agreement, but instead resolves many disputes between hundreds or perhaps even thousands of parties. See App. 86a (“[W]e believe domestic class members could be in the hundreds” and that “[t]here could be class members that ship to and from the U. S. who are not domestic who we think would be covered”); see also, e. g., Bazzle, 351 S. C., at 251,
The dissent minimizes these crucial differences by characterizing the question before the arbitrators as being merely what “procedural mode” was available to present Animal-Feeds’ claims. Post, at 696. If the question were that simple, there would be no need to consider the parties’ intent with respect to class arbitration. See Howsam, supra, at 84 (committing “procedural questions” presumptively to the arbitrator’s discretion (internal quotation marks omitted)). But the FAA requires more. Contrary to the dissent, but consistent with our precedents emphasizing the consensual basis of arbitration, we see the question as being whether the parties agreed to authorize class arbitration. Here, where the parties stipulated that there was “no agreement” on this question, it follows that the parties cannot be compelled to submit their dispute to class arbitration.
V
For these reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Notes
"[C]harter parties are commonly drafted using highly standardized forms specific to the particular trades and business needs of the parties.” Comment, A Comparative Analysis of Charter Party Agreements “Subject to” Respective American and British Laws and Decisions ... It’s AH in the Details, 26 Tulane Mar. L. J. 291, 294 (2001-2002); see also 2 T. Schoenbaum, Admiralty and Maritime Law § 11-1, p. 200 (3d ed. 2001).
Invoking an argument not pressed in or considered by the courts below, the dissent concludes that the question presented is not ripe for our review. See post, at 688, 689-692 (opinion of Ginsburg, J.). In so doing, the dissent offers no clear justification for now embracing an argument “we necessarily considered and rejected” in granting certiorari. United States v. Williams,
We do not decide whether ‘“manifest disregard’” survives our decision in Hall Street Associates, L. L. C. v. Mattel, Inc.,
The panel’s reliance on these arbitral awards confirms that the panel’s decision was not based on a determination regarding the parties’ intent. All of the arbitral awards were made under the AAA’s Class Rules, which were adopted in 2003, and thus none was available when the parties here entered into the Vegoilvoy charter party during the class period ranging from 1998 to 2002. See
See Government of United Kingdom v. Boeing Co.,
Petitioners produced expert evidence from experienced maritime arbitrators demonstrating that it is customary in the shipping business for parties to resolve their disputes through bilateral arbitration. See, e. g., App. 126a (expert declaration of John Kimball) (“In the 30 years I have been practicing as a maritime lawyer, I have never encountered an arbitration clause in a charter party that could be construed as allowing class action arbitration”); id., at 139a (expert declaration of Bruce Harris) (“I have been working as a maritime arbitrator for thirty years and this matter is the first I have ever encountered where the issue of a class action arbitration has even been raised”). These experts amplified their written statements in their live testimony, as well. See, e. g., id., at 112a, 113a (Mr. Kimball) (opining that the prospect of a class action in a maritime arbitration would be “quite foreign” to overseas shipping executives and charterers); id., at llla-112a (Mr. Harris) (opining that in the view of the London Corps of International Arbitration, class arbitration is “inconceivable”).
Under both New York law and general maritime law, evidence of “custom and usage” is relevant to determining the parties’ intent when an express agreement is ambiguous. See Excess Ins. Co. v. Factory Mut. Ins. Co., 3 N. Y. 3d 577, 590-591,
The dissent ealls this conclusion “hardly fair,” noting that the word “'policy’ is not so much as mentioned in the arbitrators’ award.” Post, at 694. But just as merely saying something is so does not make it so, cf. United States v. Morrison,
AnimalFeeds invokes the parties’ supplemental agreement as evidence that petitioners “waived” any claim that the arbitrators could not construe the arbitration agreement to permit class arbitration. Brief for Respondent 15. The dissent concludes, likewise, that the existence of the parties’ supplemental agreement renders petitioners’ argument under § 10(a)(4) “scarcely debatable.” Post, at 694. These arguments are easily answered by the dear terms of the supplemental agreement itself. The parties expressly provided that their supplemental agreement “does not alter the scope of the Parties’ arbitration agreements in any Charter Party Agreement,” and that “[njeither the fact of this Agreement nor any of its terms may be used to support or oppose any argument in favor of a class action arbitration . . . and may not be relied upon by the Parties, any arbitration panel, any tourt, or any other tribunal for such purposes.” App. to Pet. for Cert. 62a-63a (emphasis added). As with any agreement to arbitrate, we are obliged to enforce the parties’ supplemental agreement “according to its terms.” Mastrobuono v. Shearson Lehman Hutton, Inc.,
See generally Sturges & Murphy, Some Confusing Matters Relating to Arbitration Under the United States Arbitration Act, 11 Law & Contemp. Prob. 580, 580-581, n. 1 (1952) (recounting the history of the United States Arbitration Act and its 1947 reenactment and codification).
We have no occasion to decide what contractual basis may support a finding that the parties agreed to authorize class-action arbitration. Here, as noted, the parties stipulated that there was “no agreement” on the issue of class-action arbitration. App. 77a.
Dissenting Opinion
with whom Justice Stevens and Justice Breyer join, dissenting.
When an arbitration clause is silent on the question, may arbitration proceed on behalf of a class? The Court prematurely takes up that important question and, indulging in de novo review, overturns the ruling of experienced arbitrators.
The Court errs in addressing an issue not ripe for judicial review. Compounding that error, the Court substitutes its judgment for that of the decisionmakers chosen by the parties. I would dismiss the petition as improvidently granted.
I
As the Court recounts, ante, at 667-670, this case was launched as a class action in federal court charging named ocean carriers (collectively, Stolt-Nielsen) with a conspiracy to extract supracompetitive prices from their customers (buyers of ocean-transportation services). That court action terminated when the Second Circuit held, first, that the parties’ transactions were governed by contracts (charter parties) with enforceable arbitration clauses, and second, that the antitrust claims were arbitrable. JLM Industries, Inc. v. Stolt-Nielsen S. A.,
Cargo-shipper AnimalFeeds International Corp. (Animal-Feeds) thereupon filed a demand for class arbitration of the
After receiving written submissions and hearing arguments, the arbitration panel rendered a clause-construction award. It decided unanimously — and only — that the “arbitration claus[e] [used in the parties’ standard-form shipping contracts] permitfs] this . . . arbitration to proceed as a class arbitration.” App. to Pet. for Cert. 52a. Stolt-Nielsen petitioned for court review urging vacatur of the clause-construction award on the ground that “the arbitrators [had] exceeded their powers.” § 10(a)(4). The Court of Appeals upheld the award: “Because the parties specifically agreed that the arbitration panel would decide whether the arbitration claus[e] permitted class arbitration,” the Second Circuit reasoned, “the arbitration panel did not exceed its authority in deciding that issue — irrespective of whether it decided the issue correctly.”
II
I consider, first, the fitness of the arbitrators’ clause-construction award for judicial review. The arbitrators decided the issue, in accord with the parties’ supplemental
The Court, ante, at 670-671, n. 2, does not persuasively justify judicial intervention so early in the game or convincingly reconcile its adjudication with the firm final-judgment rule prevailing in the federal court system. See, e. g., 28 U. S. C. § 1257 (providing for petitions for certiorari from “[f]inal judgments or decrees” of state courts); § 1291 (providing for Court of Appeals review of district court “final decisions”); Catlin v. United States,
We have equated to “final decisions” a slim set of collateral orders that share these characteristics: They “are conclusive, [they] resolve important questions separate from the merits, and [they] are effectively unreviewable on appeal from the final judgment in the underlying action.” Mohawk Industries, Inc. v. Carpenter,
Section 16 of the FAA, governing appellate review of district court arbitration orders, lists as an appealable disposition a district court decision “confirming or denying confirmation of an award or partial award.” 9 U. S. C. § 16(a)(1)(D). Notably, the arbitrators in the matter at hand labeled their decision “Partial Final Clause Construction Award.” App. to Pet. for Cert. 45a. It cannot be true, however, that parties or arbitrators can gain instant review by slicing off a preliminary decision or a procedural order and declaring its resolution a “partial award.” Cf. Hall Street Associates, L. L. C. v. Mattel, Inc.,
Lacking this Court’s definitive guidance, some Courts of Appeals have reviewed arbitration awards “finally and definitely dispos[ing] of a separate independent claim.” E. g., Metallgesellschaft A. G. v. M/V Capitan Constante,
Receptivity to review of preliminary rulings rendered by arbitrators, however, is hardly universal. See Dealer Computer Servs., Inc. v. Dub Herring Ford,
While lower court opinions are thus divided, this much is plain: No decision of this Court, until today, has ever approved immediate judicial review of an arbitrator’s decision as preliminary as the “partial award” made in this ease.
Even if Stolt-Nielsen had a plea ripe for judicial review, the Court should reject it on the merits. Recall that the parties jointly asked the arbitrators to decide, initially, whether the arbitration clause in their shipping contracts permitted class proceedings. See supra, at 688-689. The panel did just what it was commissioned to do. It construed the broad arbitration clause (covering “[ajny dispute arising from the making, performance or termination of this Charter Party,” App. to Pet. for Cert. 47a) and ruled, expressly and only, that the clause permitted class arbitration. The Court acts without warrant in allowing Stolt-Nielsen essentially to repudiate its submission of the contract-construction issue to the arbitration panel, and to gain, in place of the arbitrators’ judgment, this Court’s de novo determination.
A
The controlling FAA prescription, § 10(a),
The sole § 10 ground Stolt-Nielsen invokes for vacating the arbitrators’ decision is § 10(a)(4). The question under that provision is “whether the arbitrators had the power, based on the parties’ submissions or the arbitration agreement, to reach a certain issue, not whether the arbitrators correctly decided that issue.” DiRussa v. Dean Witter Reynolds Inc., 121F. 3d 818, 824 (CA2 1997); Comprehensive Accounting Corp. v. Rudell,
B
The Court’s characterization of the arbitration panel’s decision as resting on “policy,” not law, is hardly fair comment, for “policy” is not so much as mentioned in the arbitrators’ award. Instead, the panel tied its conclusion that the arbitration clause permitted class arbitration, App. to Pet. for Cert. 52a, to New York law, federal maritime law, and decisions made by other panels pursuant to Rule 3 of the American Arbitration Association’s Supplementary Rules for Class Arbitrations. Id., at 49a-50a.
At the outset of its explanation, the panel rejected the argument, proffered by AnimalFeeds, that this Court’s decision in Green Tree Financial Corp. v. Bazzle,
Emphasizing the breadth of the clause in question — “‘any dispute arising from the making, performance or termination of this Charter Party’ shall be put to arbitration,” id., at 50a — the panel noted that numerous other partial awards had relied on language similarly comprehensive to permit class proceedings “in a wide variety of settings.” Id., at 49a-50a. The panel further noted “that many of the other panels [had] rejected arguments similar to those advanced by [Stolt-Nielsen].” Id., at 50a.
The Court features a statement counsel for AnimalFeeds made at the hearing before the arbitration panel, and maintains that it belies any argument that the clause in question permits class arbitration: “[A]ll the parties agree that when a contract is silent on an issue there’s been no agreement that has been reached on that issue.” Ante, at 669 (quoting App. 77a); see ante, at 673, 676, 684, 687, and n. 10. The sentence quoted from the hearing transcript concluded: “[T]herefore there has been no agreement to bar class arbitrations.” App. 77a (emphasis added). Counsel quickly clarified his position: “It’s also undisputed that the arbitration clause here contains broad language and this language should be interpreted to permit class arbitrations.” Id., at 79a. See also id., at 80a (noting consistent recognition by arbitration panels that “a silent broadly worded arbitration clause, just like the one at issue here, should be construed to permit class arbitration”); id., at 88a (“[B]road . . . language . . . silent as to class proceedings should be interpreted to permit a class proceeding.”).
The question properly before the Court is not whether the arbitrators’ ruling was erroneous, but whether the arbitrators “exceeded their powers.” § 10(a)(4). The arbitrators decided a threshold issue, explicitly committed to them, see supra, at 688-689, about the procedural mode available for presentation of AnimalFeeds’ antitrust claims. Cf. Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., ante, at 408 (plurality opinion) (“Rules allowing multiple claims (and claims by or against multiple parties) to be litigated together . . . neither change plaintiffs’ separate entitlements to relief nor abridge defendants’ rights; they alter only how the claims are processed.”). That the arbitrators endeavored to perform their assigned task honestly is not contested. “Courts ... do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts.” Paperworkers v. Misco, Inc.,
C
The Court not only intrudes on a decision the parties referred to arbitrators. It compounds the intrusion by according the arbitrators no opportunity to clarify their decision and thereby to cure the error the Court perceives. Section
IV
A
For arbitrators to consider whether a claim should proceed on a class basis, the Court apparently demands contractual language one can read as affirmatively authorizing class arbitration. See ante, at 684 (“[A] party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.”); ante, at 687. The breadth of the arbitration clause, and the absence of any provision waiving or banning class proceedings,
The Court ties the requirement of affirmative authorization to “the basic precept that arbitration ‘is a matter of con
The Court also links its affirmative-authorization requirement to the parties’ right to stipulate rules under which arbitration may proceed. See ibid. The question, however, is the proper default rule when there is no stipulation. Arbitration provisions, this Court has noted, are a species of forum-selection clauses. See Scherk v. Alberto-Culver Co.,
When adjudication is costly and individual claims are no more than modest in size, class proceedings may be “the thing,” i. e., without them, potential claimants will have little, if any, incentive to seek vindication of their rights. Amchem Products, Inc. v. Windsor,
First, the Court does not insist on express consent to class arbitration. Class arbitration may be ordered if “there is a contractual basis for concluding that the parties] agreed” “to submit to class arbitration.” Ante, at 684; see ante, at 687, n. 10 (“We have no occasion to decide what contractual basis may support a finding that the parties agreed to authorize class-action arbitration.”). Second, by observing that “the parties [here] are sophisticated business entities,” and “that it is customary for the shipper to choose the charter party that is used for a particular shipment,” the Court apparently spares from its affirmative-authorization requirement contracts of adhesion presented on a take-it-or-leave-it basis. Ante, at 684. While these qualifications limit the scope of the Court’s decision, I remain persuaded that the arbitrators’ judgment should not have been disturbed.
* * *
For the foregoing reasons, I would dismiss the petition for want of a controversy ripe for judicial review. Were I to reach the merits, I would affirm the Second Circuit’s judgment confirming the arbitrators’ clause-construction decision.
All three panelists are leaders in the international-dispute-resolution bar. See Brief for Respondent 8-9.
Alternatively, I would vacate with instructions to dismiss for lack of present jurisdiction. See Reply to Brief in Opposition 12, n. 6.
Counsel for AnimalFeeds submitted in arbitration that "[i]t would cost ... the vast majority of absent class members, and indeed the current claimants,... more to litigate the matter on an individual basis than they could recover. An antitrust case, particularly involving an international cartel[,] ... is extraordinarily difficult and expensive to litigate.” App. 82a (paragraph break omitted).
Federal Rule of Civil Procedure 23(f), adopted in response to Coopers & Lybrand, gives courts of appeals discretion to permit an appeal from an order granting or denying class-action certification. But the rule would not permit review of a preliminary order of the kind at issue here, i. e., one that defers decision whether to grant or deny certification.
See Metallgesellschaft A. G.,
But see Liberty Mut. Ins. Co. v. Wetzel,
The parties agreed that the arbitrators would issue a “partial final award,” and then “stay all proceedings ... to permit any party to move a court of competent jurisdiction to confirm or to vacate” the award. App. 56a. But an arbitration agreement, we have held, cannot “expand judicial review” available under the FAA. Hall Street Associates, L. L. C. v. Mattel, Inc.,
Title 9 U. S. C. § 10(a) provides:
“In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
“(1) where the award was procured by corruption, fraud, or undue means;
“(2) where there was evident partiality or corruption in the arbitrators, or either of them;
“(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
“(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.”
On New York law, the panel referred to Evans v. Famous Music Corp., 1 N. Y. 3d 452,
Several courts have invalidated contractual bans on, or waivers of, class arbitration because proceeding on an individual basis was not feasible in view of the high costs entailed and the slim benefits achievable. See, e. g., In re American Express Merchants' Litigation,