FAA Section 5: Petitioning a Court to Appoint an Arbitrator

When the people named in an arbitration clause cannot agree on who will actually hear the case, a federal court can appoint the arbitrator for them. Section 5 of the Federal Arbitration Act, codified at 9 U.S.C. § 5, gives either side the right to petition a district court to fill the seat when the private selection process has broken down or was never spelled out. The FAA Section 5 court appointment of an arbitrator is a backstop, not a do-over: the judge supplies the neutral and nothing else, and the arbitration then proceeds on the terms the parties originally agreed to.¹

When a Court Will Step In

Section 5 identifies three triggers. The agreement never specified a method for choosing the arbitrator. The agreement specified one but a party refuses to follow it. Or, for any other reason, there is a “lapse” in naming an arbitrator or filling a vacancy.¹

That third category is deliberately broad. A designated arbitrator declines to serve. An arbitration institution has gone out of business. The parties have deadlocked with no plausible next move. What ties these together is that the private selection process has actually failed. Courts are reluctant to intervene over a scheduling dispute or a short delay, so the breakdown needs to be genuine.

Either party can file. You do not have to be the one who demanded arbitration or the one who drafted the contract. The statute lets “either party to the controversy” apply, and the person the court names acts under the agreement “with the same force and effect” as if the parties had chosen that person themselves.¹

You Still Need an Independent Basis for Federal Jurisdiction

The FAA is a federal statute, but it does not by itself get you into federal court. The Supreme Court held in Vaden v. Discover Bank that the FAA “bestows no federal jurisdiction but rather requires for access to a federal forum an independent jurisdictional basis” over the underlying dispute.² Section 4 says the same thing structurally, allowing petitions only in a district court that “save for such agreement, would have jurisdiction under title 28” over the controversy.³

In practice that means one of two things:

Diversity jurisdiction, where the parties are citizens of different states and the amount in controversy exceeds $75,000.
Federal question jurisdiction, where the underlying dispute itself arises under federal law, such as a federal securities claim or a statutory employment discrimination case.

If neither applies, the federal courthouse is closed. A $50,000 contract dispute between two residents of the same state, for example, will not qualify. State courts can still enforce arbitration agreements and appoint arbitrators under state arbitration statutes, but the FAA petition process is not the vehicle.

What to Put in the Petition

The judge needs enough on paper to conclude that the selection process has genuinely collapsed. Start with the written arbitration agreement itself, since the court has nothing to enforce without the contract language committing the parties to arbitration and describing whatever selection method they picked.

Then build a chronological record of the failure. Demand letters, emails, correspondence with any arbitration institution involved, and responses (or the absence of them) from the other side. If you followed the agreed method and it did not work, show that. If the other party ignored the demand, show that. The point is to make the lapse obvious.

Describe the underlying dispute and, if it matters, the kind of background an arbitrator should have. A construction defect case and a securities case call for different expertise, and while the court is not bound by your preference, the context helps. Include a clear statement of jurisdiction identifying diversity or the federal question at issue.

Filing, Fees, and Service

File with the clerk of the appropriate federal district court. The filing fee is $405, which consists of the $350 statutory fee and a $55 administrative fee.⁴ If you cannot afford it, you can apply for in forma pauperis status to have the fee waived.

Serve the other party according to the Federal Rules of Civil Procedure. Professional process servers typically charge between $40 and $400 depending on location and difficulty. Cutting corners on service is one of the fastest ways to see a petition dismissed, so follow the rules.

Once the opposing party has been served, the matter is assigned to a judge. If the record of the lapse is clear and undisputed, many judges will enter an appointment order on the papers. If the other side contests the petition, expect a brief hearing on whether the selection process has actually failed.

How the Court Picks the Arbitrator

The statute constrains the judge in one important way. Unless the arbitration agreement provides otherwise, the court appoints a single arbitrator.¹ If your contract calls for a three-member panel, the court can appoint all three. What the court cannot do is expand or shrink the panel beyond what the parties agreed to.

Judges look for candidates who are impartial and have enough background to handle the subject matter. Many courts keep rosters of qualified neutrals or draw from lists maintained by arbitration organizations. The appointee has the same authority as an arbitrator the parties chose by mutual agreement, and the eventual award is subject to the same limited judicial review.

Disclosure Obligations

A court-appointed arbitrator has the same ethical duties as any other neutral. Before accepting, the arbitrator should disclose financial interests, professional relationships, and personal connections involving the parties, their lawyers, or key witnesses. The working standard is that if a potential conflict crosses the arbitrator’s mind, it gets disclosed rather than self-evaluated, and the duty continues as new information surfaces during the proceeding.

Disclosures need specifics. An arbitrator who once worked at the same firm as one party’s counsel should say when, in what capacity, and how much direct contact was involved. The parties then decide whether the relationship is disqualifying. This matters because a failure to disclose a material relationship is one of the few grounds for attacking the eventual award.

Challenging a Court-Appointed Arbitrator

The FAA does not give you a pre-arbitration mechanism to challenge the appointment. Once the judge names the arbitrator, courts generally defer to that choice. The real remedy comes later. If the arbitrator issues an award and a serious conflict comes to light, the losing party can move to vacate under 9 U.S.C. § 10(a)(2), which permits vacatur for “evident partiality or corruption” in the arbitrator.⁵

The statute does not define “evident partiality,” and the federal circuits are split. Some require a showing that a reasonable person would conclude the arbitrator was actually partial. Others hold that an appearance of partiality is enough. The practical point is the same across circuits: if you learn something suggesting a conflict, raise it immediately. Sitting on known information and raising it only after an unfavorable award can constitute waiver.

The other statutory grounds are narrow. A court can vacate an award procured by corruption or fraud, an award where the arbitrator refused to hear material evidence, or one where the arbitrator exceeded the scope of their authority.⁵ Disagreeing with the outcome is not a ground. Courts enforce arbitration awards even when they think the arbitrator got the law wrong. And the window is short: a motion to vacate must be served within three months after the award is filed or delivered.

Once the arbitrator is in the chair, the court’s job is done. The neutral schedules hearings, takes evidence, and issues a final award under the terms of the original agreement. The judge does not supervise the proceeding or revisit the merits.

1
Office of the Law Revision Counsel. 9 USC 5 – Appointment of Arbitrators or Umpire
2
Justia Law. Vaden v Discover Bank, 556 US 49 (2009)
3
Office of the Law Revision Counsel. 9 USC 4 – Failure to Arbitrate Under Agreement; Petition to United States Court Having Jurisdiction; Notice and Service Thereof; Hearing and Determination
4
United States Courts. District Court Miscellaneous Fee Schedule
5
Office of the Law Revision Counsel. 9 USC 10 – Same; Vacation; Grounds; Rehearing