Any objection to the arbitrator’s jurisdiction or contractual authority to decide an issue must be raised (by one of a number of alternative challenges) before submitting argument or evidence on the substance of that issue to the arbitrator. Otherwise, the party implicitly consents to the arbitrator’s determining the issue and is barred from later seeking to vacate the arbitration award as being beyond the proper scope of the arbitrator’s powers. Here, a collective bargaining agreement (CBA) called for arbitration of disputes but also provided that the arbitrator could not add to, detract from or alter the CBA. The union sought arbitration to compel payment of a bonus to new hires, whom the CBA, it claimed, disentitled by reason of a mutual mistake of the contracting parties. Without challenging the arbitrator’s jurisdiction, ASARCO submitted its arguments on the merits of the claim to the arbitrator without objecting to his jurisdiction, arguing to him that the no addition to clause barred the relief the union sought. ASARCO thus waived any argument that the arbitrator lacked authority to decide the union’s claim or that the no addition to clause precluded him from awarding the relief the union sought.
Ninth Circuit Court of Appeals (Gettleman, J., sitting by designation; Ikuta, J., dissenting); June 19, 2018; 2018 U.S. App. LEXIS 16426