Chapter 20 - § 20.5 • AGREEMENTS TO ADD TO OR ELIMINATE STATUTORY GROUNDS FOR APPEAL — WAIVER OF RIGHT TO APPEAL

• Jurisdiction: Colorado

§ 20.5 • AGREEMENTS TO ADD TO OR ELIMINATE STATUTORY GROUNDS FOR APPEAL — WAIVER OF RIGHT TO APPEAL

The Tenth Circuit has recognized that the parties by their agreement may restrict or eliminate appeals from the district court, but the agreement must be clear.⁶⁷ The parties may not agree to expand the grounds for appeal.⁶⁸ However, the Texas Supreme Court held that the FAA did not preempt enforcement of an agreement for expanded judicial review of an arbitration award under Texas law, since such provision was consistent with the FAA's purpose of ensuring that private arbitration agreements are enforced according to their terms.⁶⁹ The U.S. Supreme Court denied certiorari.

In Bowen v. Amoco Pipeline Co.,⁷⁰ the Tenth Circuit held that a provision in the arbitration agreement expanding the grounds for appeal to the circuit court beyond those provide by the FAA, i.e., if "not supported by the evidence," was invalid. The court found that such expanded review "threatens to undermine the policies behind the FAA. We would reach an illogical result if we concluded that the FAA's policy of ensuring judicial enforcement of arbitration agreements is well served by allowing for expansive judicial review of the matter is arbitrated."⁷¹

The parties probably cannot define by agreement the orders that may be appealed, since these are powers solely of the legislature and Congress. For example, an agreement for the appellate court to conduct a substantive review of the arbitrator's award is void since it gives the court of appeals jurisdiction in excess of that granted by the legislature to the courts in the jurisdictional statutes.⁷² The Colorado Court of Appeals held that the parties could not by agreement vary the court's appellate jurisdiction as defined by the legislature.⁷³ This decision involved expanding the scope of the review. However, the Fifth Circuit held that parties could expand judicial review so that "errors of law shall be subject to appeal."⁷⁴ This ground for jurisdictional review probably does not survive the U.S. Supreme Court decision in Hall Street Associates, L.L.C. v. Mattel, Inc.⁷⁵ However, to the extent that "errors of law" constitute "manifest disregard of the law," it may. See § 17.4.15.

In MACTEC, Inc. v. Gorelick,⁷⁶ the Tenth Circuit upheld a provision in the arbitration agreement providing: "Judgment upon the award rendered by the arbitrator shall be final and non-appealable and may be entered in any court having jurisdiction thereof."⁷⁷ The...