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AHMED v. OAK MANAGEMENT CORP.—DISSENT
ALEXANDER, J., with whom ROBINSON, C. J., and
ECKER, J., join, dissenting. It is axiomatic that arbitra-
tion agreements are contracts and that an arbitrator
has only those powers that are conferred on him or her
by the arbitration agreement. See, e.g., Nussbaum v.
Kimberly Timbers, Ltd., 271 Conn. 65, 72, 856 A.2d
364 (2004) (‘‘an arbitrator’s jurisdiction is rooted in the
agreement of the parties’’ (internal quotation marks
omitted)). Case law establishes that, when an arbitrator
violates an explicit directive contained in an arbitration
agreement, especially a provision intended to ensure
the fairness of the proceeding, the arbitrator has acted
in excess of his or her authority and outside of the
scope of the agreement. ‘‘[A]n arbitrary award outside
of the scope of the agreement of arbitration is not bind-
ing [on] anyone, because it has no legal sanction.’’
(Internal quotation marks omitted.) Detroit Automobile
Inter-Ins. Exchange v. Gavin, 416 Mich. 407, 440, 331
N.W.2d 418 (1982); see also id. (‘‘[t]he [arbitration]
agreement . . . entered into between the parties is the
law of the case’’ (internal quotation marks omitted)).
In the present case, the employment agreement
between the plaintiff, Iftikar Ahmed, and the defendant,
Oak Management Corporation (Oak), contained an arbi-
tration clause that incorporated the Commercial Arbi-
tration Rules and Mediation Procedures of the
American Arbitration Association (AAA), which strictly
circumscribe an arbitrator’s authority to impose puni-
tive sanctions1 or to limit a party’s right to assert claims
and defenses, to present evidence, or to otherwise par-
ticipate fully in the arbitration. See American Arbitra-
tion Association, Commercial Arbitration Rules and
Mediation Procedures (October 1, 2013) (AAA rules).
Because the AAA rules clearly precluded application
of the fugitive disentitlement doctrine2 to deprive
Ahmed of his right to arbitrate pursuant to the parties’
agreement, I disagree with the majority that the arbitra-
tor did not exceed the scope of his authority under
General Statutes § 52-418 (a) (4) by applying that doc-
trine in this case. A person does not lose his or her
contract rights because he or she has been accused of
a crime; nor does a person’s absconder status in a crimi-
nal prosecution extinguish his or her contractual rights.
I also disagree with the majority that the arbitrator
did not engage in misconduct under § 52-418 (a) (3) by
denying Ahmed an opportunity to present evidence and
argument at a hearing on the merits of the parties’
respective claims. By its express terms, § 52-418 (a) (3)
mandates that the arbitrator hear evidence from the
parties that is ‘‘pertinent and material to the controversy
. . . .’’ It also mandates vacatur of an arbitral award
when the arbitrator engages in ‘‘any other action by
which the rights of any party have been prejudiced
. . . .’’ General Statutes § 52-418 (a) (3). In the present
case, the parties each had a right to a hearing, which
was prejudiced by the arbitrator’s action. Section 5706
(1) and (2) of title 10 of the Delaware Code Annotated
(2013), which governed the parties’ agreement,
expressly mandates that the arbitrator hold a hearing
on the merits of the parties dispute and, upon complaint
of one of the parties, it authorizes the courts to intervene
and order the arbitrator ‘‘to proceed promptly with the
hearing.’’3 Subdivision (2) of the statute further provides
that, in addition to the right to be heard and to present
material evidence, the parties are ‘‘entitled . . . to
cross-examine witnesses appearing at the hearing.’’ Del.
Code Ann. tit. 10, § 5706 (2) (2013). A failure to conduct
a hearing in accordance with the demands of § 5706 is
recognized as a ground for vacatur under Delaware
law.4 See Del. Code Ann. tit. 10, § 5714 (a) (4) (2013).
The arbitrator in the present case did not conduct a
hearing, much less allow Ahmed to present material
evidence and to cross-examine Oak’s witnesses. He there-
fore engaged in misconduct under Connecticut law by
denying Ahmed the hearing to which he was entitled
by the arbitration clause in the parties’ agreement.
Accordingly, I respectfully dissent.
I
I begin with Ahmed’s claim that the arbitrator exceeded
his authority by preventing him from presenting claims,
evidence, or defenses to Oak’s claims in violation of
the AAA rules. ‘‘[C]ourts must rigorously enforce arbi-
tration agreements according to their terms . . .
including terms that specify . . . the rules under which
that arbitration will be conducted . . . .’’ (Citations
omitted; internal quotation marks omitted.) American
Express Co. v. Italian Colors Restaurant, 570 U.S. 228,
235, 133 S. Ct. 2304, 186 L. Ed. 2d 417 (2013). ‘‘The
standard for reviewing a claim that the award does
not conform to the submission requires what we have
termed ‘in effect, de novo judicial review.’ ’’ Harty v.
Cantor Fitzgerald & Co., 275 Conn. 72, 84, 881 A.2d
139 (2005).
An arbitrator’s violation of the rules specified in the
arbitration agreement—or any other explicit directive
contained in the agreement—is universally recognized
as a ground for vacatur. See, e.g., Edstrom Industries,
Inc. v. Companion Life Ins. Co., 516 F.3d 546, 552 (7th
Cir. 2008) (‘‘[P]recisely because arbitration is a creature
of contract, the arbitrator cannot disregard the lawful
directions the parties have given [him]. If they tell him
to apply Wisconsin law, he cannot apply New York
law.’’), overruled in part on other grounds by Hall Street
Associates, LLC v. Mattel, Inc., 552 U.S. 576, 128 S. Ct.
1396, 170 L. Ed. 2d 254 (2008); Apache Bohai Corp.
LDC v. Texaco China BV, 480 F.3d 397, 401 (5th Cir.
2007) (‘‘[when] arbitrators act ‘contrary to express con-
tractual provisions,’ they have exceeded their powers’’),
overruled in part on other grounds by Hall Street Asso-
ciates, LLC v. Mattel, Inc., 552 U.S. 576, 128 S. Ct. 1396,
170 L. Ed. 2d 254 (2008); International Union, United
Mine Workers of America v. Marrowbone Development
Co., 232 F.3d 383, 388 (4th Cir. 2000) (‘‘courts owe no
deference to an arbitrator who has failed to provide
the parties with a full and fair hearing [pursuant to
the terms of their arbitration agreement]’’); Executone
Information Systems, Inc. v. Davis, 26 F.3d 1314, 1325
(5th Cir. 1994) (‘‘arbitral action contrary to express con-
tractual provisions will not be respected [by courts]’’
(internal quotation marks omitted)); Local 1199, Drug,
Hospital & Health Care Employees Union, RWDSU,
AFL-CIO v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir.
1992) (arbitrator ‘‘may not impose a remedy [that] directly
contradicts the express language of the collective bar-
gaining agreement’’ (internal quotation marks omit-
ted)); Bonshire v. Thompson, 52 Cal. App. 4th 803,
805–806, 60 Cal. Rptr. 2d 716 (1997) (when arbitration
clause in parties’ agreement specifically provided that
no extrinsic evidence could be introduced in arbitration
proceeding, arbitrator exceeded his powers in consider-
ing such evidence), review denied, California Supreme
Court, Docket No. S061924 (July 16, 1997); Malekzadeh
v. Wyshock, 611 A.2d 18, 21 (Del. Ch. 1992) (‘‘if [the
arbitrator’s] actions are in direct contradiction to the
express terms of the agreement of the parties, he has
exceeded his authority’’); Detroit Automobile Inter-Ins.
Exchange v. Gavin, supra, 416 Mich. 438 (when arbitra-
tion agreement stipulated that arbitration panel’s deci-
sion must be unanimous, ‘‘a less than unanimous award
was not what the parties agreed to, [and therefore] it
could not be enforced’’); Washington v. Washington,
283 Mich. App. 667, 672, 770 N.W.2d 908 (2009) (‘‘arbitra-
tors have exceeded their powers whenever they act
beyond the material terms of the contract from which
they primarily draw their authority’’ (internal quotation
marks omitted)); Seagate Technology, LLC v. Western
Digital Corp., 854 N.W.2d 750, 765 (Minn. 2014) (‘‘the
scope of arbitrator authority is a matter of contract
. . . and parties are always free to fashion arbitration
agreements in ways that limit the arbitrator’s power to
award certain types of relief’’ (citation omitted)).
The law in Connecticut is no different. This court
has stated repeatedly that, because arbitration is a crea-
ture of contract, ‘‘[a] person can be compelled to arbi-
trate a dispute only if, to the extent that, and in the
manner which, he has agreed so to do. . . . [I]t is the
province of the parties to set the limits of the authority
of the arbitrators, and the parties will be bound by the
limits they have fixed.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Nussbaum
v. Kimberly Timbers, Ltd., supra, 271 Conn. 72; see
also Levine v. Advest, Inc., 244 Conn. 732, 745, 714 A.2d
649 (1998) (‘‘[a]rbitration agreements are contracts and
their meaning is to be determined . . . under accepted
rules of [state] contract law’’ (internal quotation marks
omitted)). In accordance with these well established
principles, we have recognized that ‘‘[t]he arbitrator is
empowered to decide all issues of fact and law unless
he or she is contractually restricted from doing so in
some specific way by the language of the arbitration
clause.’’ (Internal quotation marks omitted.) Harty v.
Cantor Fitzgerald & Co., supra, 275 Conn. 86 n.7. The
majority acknowledges as much, noting that courts will
vacate awards on the ground that the arbitrator has
violated the express terms of the arbitral rules specified
in the arbitration agreement.
AAA Rule R-32 (a) provides that each party has a
right to present evidence and allows the arbitrator to
‘‘vary’’ this right only if ‘‘the parties are treated with
equality and . . . each party has the right to be heard
and is given a fair opportunity to present its case.’’5
(Emphasis added.) By granting Oak’s motion for appli-
cation of the fugitive disentitlement doctrine without
allowing Ahmed any opportunity to respond, the arbi-
trator (1) denied Ahmed any opportunity to present
evidence in his defense, and (2) did so without affording
Ahmed an opportunity to be heard. There is no ambigu-
ity as to whether this treatment violated the express
terms of Rule R-32 (a). Even if the language of Rule R-
32 (a) could be expanded to permit the arbitrator to
deny Ahmed the right to present evidence, as the major-
ity suggests, it expressly requires that Ahmed have the
opportunity to be heard before such an extreme mea-
sure is imposed. Fundamental fairness in arbitration
requires the ‘‘opportunity to be heard and to present
relevant and material evidence and argument before
the decision makers . . . .’’ Bowles Financial Group,
Inc. v. Stifel, Nicolaus & Co., 22 F.3d 1010, 1013 (10th
Cir. 1994). The arbitrator’s application of the fugitive
disentitlement doctrine resulted in a one-sided presen-
tation by Oak of factual allegations and disputed legal
arguments that Ahmed was never given an opportunity
to contest. The arbitrator heard Oak’s reasons for
applying the doctrine but never allowed Ahmed to give
his reasons against applying it. This manifestly unequal
treatment of the parties exceeded the arbitrator’s authority
under the express terms of Rule R-32 (a).
Additionally, the arbitrator exceeded his authority under
AAA Rule R-58, titled ‘‘Sanctions,’’ which provides: ‘‘(a)
The arbitrator may, upon a party’s request, order appro-
priate sanctions where a party fails to comply with its
obligations under these rules or with an order of the
arbitrator. In the event that the arbitrator enters a sanc-
tion that limits any party’s participation in the arbitra-
tion or results in an adverse determination of an issue
or issues, the arbitrator shall explain that order in writ-
ing and shall require the submission of evidence and
legal argument prior to making of an award. The arbitra-
tor may not enter a default award as a sanction.
‘‘(b) The arbitrator must provide a party that is sub-
ject to a sanction request with the opportunity to
respond prior to making any determination regarding
the sanctions application.’’ The arbitrator’s conduct in
this case violated the express terms of Rule R-58 in two
distinct ways.
First, the arbitrator violated AAA Rule R-58 (b) by
imposing a sanction without providing the ‘‘party that
is subject to [the] sanction request with the opportunity
to respond prior to making any determination regarding
the sanction.’’ Although the majority acknowledges that
‘‘the equitable remedy of disentitlement fairly may be
characterized as a sanction,’’ it is undisputed that the
arbitrator granted Oak’s request for this sanction with-
out hearing from Ahmed on this issue, without inviting
Ahmed to respond, and without waiting for the June 8,
2020 deadline for Ahmed to respond. Proceeding in this
manner violated the express terms of Rule R-58, which
require the arbitrator to provide a party with an opportu-
nity to respond before imposing a sanction. See AAA
Rule R-58. The violation of this rule could not be any
more evident.
Second, the arbitrator violated AAA Rule R-58 (a) by
imposing a sanction on Ahmed for conduct other than
a ‘‘fail[ure] to comply with [his] obligations under [the
AAA] rules or with an order of the arbitrator.’’ Id. The
arbitrator’s authority, although broad, is limited to the
authority conferred by the AAA rules. See, e.g., Nuss-
baum v. Kimberly Timbers, Ltd., supra, 271 Conn. 72
(arbitrator’s authority is limited to authority conferred
by parties to conduct arbitration in manner they have
agreed). The AAA rules grant arbitrators the authority
to manage the efficient conduct of the arbitration and
to control the parties by threat of sanctions. Rule R-58
(a) authorizes the arbitrator to impose sanctions under
two conditions: (1) failure to comply with the AAA
rules, or (2) failure to comply with an order of the
arbitrator. See AAA Rule R-58 (a). Neither of those
conditions was met in this case.
The reality is that the arbitrator imposed a sanction
of his own invention, one not included in AAA Rule R-
58 or any fair construction of its terms. By applying the
fugitive disentitlement doctrine, the arbitrator imposed
a severe sanction against Ahmed for conduct (remaining
in India) that violated no arbitral rule or order. Ahmed
was never ordered by the arbitrator to return to the
United States. His location in India manifestly was not
a circumstance falling within the scope of Rule R-58.
By concluding otherwise, the arbitrator exceeded the
authority conferred on him by the arbitration clause in
the parties’ agreement. See, e.g., Seagate Technology,
LLC v. Western Digital Corp., supra, 854 N.W.2d 761
and n.8 (‘‘[t]he arbitrator’s ability to issue punitive sanc-
tions is controlled by the arbitration agreement,’’ and,
‘‘[t]herefore, parties are able to include or exclude the
use of punitive sanctions when constructing an arbitra-
tion agreement, either through express provision or
through the incorporation of a particular set of arbitra-
tion rules [such as the AAA rules]’’).
Furthermore, as previously stated, an arbitrator’s
authority to limit a party’s participation in the arbitra-
tion on the basis of a violation of the AAA rules or an
order of the arbitrator is expressly conditioned on that
party’s right to be heard prior to the imposition of the
sanction. See AAA Rule R-58. Again, this condition was
not met in this case. To the contrary, as the majority
opinion indicates, the arbitrator granted Oak’s motion
for application of the fugitive disentitlement doctrine
within a week of its filing, without allowing Ahmed any
opportunity to respond.
The majority contends that the arbitrator did not
ignore AAA Rule R-58 (a) but merely interpreted the
AAA rules to allow sanctions for conduct other than a
violation of an arbitral rule or order. I agree that arbitra-
tors have broad discretion to interpret the text of the
arbitral rules chosen by the parties. I do not agree,
however, that the arbitrator’s decision in this case can
be viewed as a mere act of interpretation. The arbitra-
tor’s ruling is not grounded in any reasonable reading
of the language of Rule R-58, which is the AAA rule
governing sanctions. Instead, the arbitrator unilaterally
created an entirely new basis for the imposition of sanc-
tions that bears no connection to the grounds specified
in Rule R-58.
The parties’ choice to arbitrate according to a particu-
lar set of rules would mean little if the arbitrator could
modify those rules by adding new rules derived from
other sources. Despite the great deference given to arbi-
trators, when the arbitrator ‘‘base[s] his award on some
body of thought, or feeling, or policy or law that is
outside the contract . . . the award can be said not to
draw its essence from the [parties agreement]. . . . In
such cases the [United States] Supreme Court has said
that the arbitrator is dispens[ing] his own brand of . . .
justice. [United Steelworkers of America v. Enterprise
Wheel & Car Corp., 363 U.S. 593, 597, 80 S. Ct. 1358,
4 L. Ed. 2d 1424 (1960)].’’ (Citation omitted; internal
quotation marks omitted.) United Food & Commercial
Workers, Local 1546 v. Illinois-American Water Co.,
569 F.3d 750, 755 (7th Cir. 2009). In Stolt-Nielsen S. A.
v. AnimalFeeds International Corp. 559 U.S. 662, 130
S. Ct. 1758, 176 L. Ed. 2d 605 (2010), the United States
Supreme Court held that an arbitral panel exceeded its
authority when it interpreted an arbitration agreement
to permit class arbitration while the agreement was
silent as to whether class arbitration was permitted. Id.,
672–73. The court reasoned that, although the arbitral
panel was empowered to interpret the terms of the
arbitration agreement, the silence of the arbitration
agreement did not authorize the panel to ‘‘[proceed] as
if it had the authority of a common-law court to develop
what it viewed as the best rule to be applied in such a
situation.’’ Id., 673–74. In the present case, the arbitrator
imposed a sanction on Ahmed that was not authorized
by any reasonable interpretation of the AAA rule gov-
erning sanctions. In so doing, he exceeded the authority
that was conferred on him by the arbitration clause in
the parties’ agreement to conduct an arbitration
according to the AAA rules.
The majority concludes that the arbitrator’s authority
to deprive Ahmed of his express rights under the arbitra-
tion clause in the parties’ agreement derives from AAA
Rule R-47 (a), which provides that ‘‘[t]he arbitrator may
grant any remedy or relief that the arbitrator deems
just and equitable and within the scope of the agreement
of the parties, including, but not limited to, specific
performance of a contract.’’ There are two reasons why
Rule R-47 (a) does not authorize the arbitrator’s conduct
in this case. First, Rule R-47 (a) governs the relief that
the arbitrator may grant in the award;6 it confers no
authority on the arbitrator to ignore the ground rules
the parties’ have set up to ensure a fair hearing and to
limit the arbitrator’s authority to act. One need look no
further than the cases cited in the majority opinion to
understand that Rule R-47 (a) is concerned only with
the type of relief that the arbitrator can include in the
final award after a hearing on the merits of the parties’
respective claims. All but one of the cases cited by
the majority concerned the arbitrator’s authority under
Rule R-47 (a) to award attorney’s fees, punitive dam-
ages, or other monetary sanctions as part of the final
award. See Wisconsin Automated Machinery Corp. v.
Diehl Woodworking Machinery, Inc., Docket No. 07 C
6840, 2008 WL 4889012, *4–5 (N.D. Ill. August 7, 2008);
In re Matter of Arbitration Between Prudential-Bache
Securities, Inc. & Depew, 814 F. Supp. 1081, 1083 (M.D.
Fla. 1993); Willoughby Roofing & Supply Co. v. Kajima
International, Inc., 598 F. Supp. 353, 357 (N.D. Ala.
1984), aff’d, 776 F.2d 269 (11th Cir. 1985); Superadio
Ltd. Partnership v. Winstar Radio Productions, LLC,
446 Mass. 330, 337–39, 844 N.E.2d 246 (2006); Clark v.
Garratt & Bachand, P.C., Docket No. 344676, 2019 WL
3941493, *3 (Mich. App. August 20, 2019); Minerals
Development & Supply Co. v. Superior Silica Sands,
LLC, Docket No. 2012AP2328, 2013 WL 594332, *9 (Wis.
App. November 7, 2013) (decision without published
opinion, 352 Wis. 2d 246, 841 N.W.2d 580), review
denied, 354 Wis. 2d 862, 848 N.W.2d 858, cert. denied,
574 U.S. 873, 135 S. Ct. 246, 190 L. Ed. 2d 137 (2014).
Another concerned whether the arbitrator could order
specific performance in lieu of awarding damages. See
Schmidt v. Schmidt, Docket No. 1 CA-CV 12-0701, 2014
WL 3882178, *6–7 (Ariz. App. August 5, 2014). None of
the cases, however, involved an arbitrator’s refusal to
hear evidence or to conduct a hearing or failure to abide
by express contractual provisions limiting the arbitra-
tor’s authority to impose punitive sanctions.
Second, even if AAA Rule R-47 (a) reasonably could
be construed as authorizing the arbitrator to issue orders
related to the conduct of the arbitration, it does not
grant the arbitrator any authority to violate the other
AAA rules. By its express terms, Rule R-47 (a) requires
that the arbitrator’s orders comply with the explicit
directives contained in the arbitration agreement, which,
in this case, incorporates the AAA rules. Any relief afforded
under Rule R-47 (a) must therefore comply with those
rules in order to be ‘‘within the scope of the agreement
of the parties . . . .’’ AAA Rule R-47; see, e.g., Interna-
tional Union, United Mine Workers of America v. Mar-
rowbone Development Co., supra, 232 F.3d 389 (vacating
arbitral award as outside scope of arbitration agreement
when arbitrator failed to conduct evidentiary hearing
in contravention of contract provision that he ‘‘conduct
a hearing in order to . . . receive evidence’’ (internal
quotation marks omitted)); Local 1199, Drug, Hospi-
tal & Health Care Employees Union, RWDSU, AFL-
CIO v. Brooks Drug Co., supra, 956 F.2d 25 (arbitrator
‘‘may not impose a remedy [that] directly contradicts
the express language of the collective bargaining agree-
ment’’ (internal quotation marks omitted)).
In response, the majority relies on the oft cited princi-
ple that courts may not set aside an arbitrator’s award
simply because he ‘‘committed serious error, or the
decision is incorrect or even whacky.’’ (Internal quota-
tion marks omitted.) Johnson Controls, Inc. v. Edman
Controls, Inc., 712 F.3d 1021, 1025 (7th Cir. 2013). ‘‘Fac-
tual or legal errors by arbitrators—even clear or gross
errors—do not authorize courts to annul awards.’’
(Internal quotation marks omitted.) Id., 1026. Thus, so
long as an arbitrator ‘‘is even arguably construing or
applying the contract and acting within the scope of
his authority, the fact that a court is convinced he com-
mitted serious error does not suffice to overturn his
decision.’’ (Internal quotation marks omitted.) Major
League Baseball Players Assn. v. Garvey, 532 U.S. 504,
509, 121 S. Ct. 1724, 149 L. Ed. 2d 740 (2001).
The majority’s reliance on that principle is misplaced.
Although courts defer to the factual and legal determi-
nations of the arbitrator on the merits, they also ‘‘rigor-
ously enforce’’ the terms of the arbitration agreement,
including the arbitral rules specified by the parties.
(Internal quotation marks omitted.) American Express
Co. v. Italian Colors Restaurant, supra, 570 U.S. 233.
It is ‘‘[p]recisely because arbitration awards are subject
to such judicial deference . . . [that] it is imperative
that the integrity of the process, as opposed to the
correctness of the individual decision, be zealously safe-
guarded.’’ Goldfinger v. Lisker, 68 N.Y.2d 225, 231, 500
N.E.2d 857, 508 N.Y.S.2d 159 (1986). ‘‘Even with an
unrestricted submission . . . it is well settled that the
award may be reviewed to determine if the arbitrators
exceeded their authority . . . .’’ Harty v. Cantor Fitz-
gerald & Co., supra, 275 Conn. 84. ‘‘The standard [of
review in such circumstances] requires what we have
termed in effect, de novo judicial review.’’ (Internal
quotation marks omitted.) Id. When an arbitration
agreement incorporates specific guidelines meant to
ensure that the parties have an equal opportunity to be
heard and are otherwise treated fairly, an arbitrator
who violates them is not acting within the scope of
his authority, and, therefore, the resulting orders are
entitled to no deference. See, e.g., California Union
Square L.P. v. Saks & Co., LLC, 50 Cal. App. 5th 340,
349, 263 Cal. Rptr. 3d 841 (2020) (when arbitrator’s
ruling is contrary to express contractual provisions, it
is not within scope of agreement, and ‘‘the warnings
. . . concerning the limitations on judicial power over
arbitration awards are [simply] not applicable’’ (internal
quotation marks omitted)); In re New York State Law
Enforcement Officers Union, District Council 82,
AFSCME, AFL-CIO, 34 App. Div. 3d 1161, 1162, 824
N.Y.S.2d 800 (2006) (‘‘[t]hese clear contractual provi-
sions [requiring proof by a preponderance of the evi-
dence] were ignored, not interpreted, by the arbitrator
so [the court] did not substitute its interpretation of
the contract for that of the arbitrator’’).
Parties entering into an arbitration agreement do so
with the expectation that the rules they set for the
arbitrator will be respected. See, e.g., Nussbaum v.
Kimberly Timbers, Ltd., supra, 271 Conn. 72 (‘‘[i]t is
the province of the parties to set the limits of the author-
ity of the arbitrators, and the parties will be bound by
the limits they have fixed’’ (internal quotation marks
omitted)). ‘‘To confirm an arbitration award in excess of
the powers granted by an arbitration agreement would
destroy the very purpose of arbitration and be contrary
to the sound policy of encouraging the settlement of
private disputes by the voluntary agreement of the par-
ties.’’ (Internal quotation marks omitted.) California
Union Square L.P. v. Saks & Co., LLC, supra, 50 Cal.
App. 5th 349. Thus, ‘‘the cases establish one bright-line
rule: arbitrators may not award a remedy that conflicts
with express terms of the arbitrated contract. To the
extent this means arbitrators may not award remedies
expressly forbidden by the arbitration agreement or
submission, the point is well taken. How the violation
of an express and explicit restriction on the arbitrator’s
power . . . could be considered rationally related to
a plausible interpretation of the agreement is difficult
to see.’’ (Citation omitted; internal quotation marks
omitted.) Advanced Micro Devices, Inc. v. Intel Corp.,
9 Cal. 4th 362, 381–82, 885 P.2d 994, 36 Cal. Rptr. 2d
581 (1994). In the present case, the process Ahmed
received fell far short of the process for which he had
bargained. He was prevented from viewing the evidence
presented against him. He was prevented from offering
any evidence in his own defense or arguing the merits of
his case. He was subjected to these conditions without
being given the opportunity to be heard on whether
they should be applied. ‘‘No party agreeing to arbitration
bargained for a proceeding such as this, and nothing
in our precedent compels us to ignore these facts.’’
Costco Wholesale Corp. v. International Brotherhood
of Teamsters, Local No. 542, 850 Fed. Appx. 467, 469
(9th Cir. 2021).
In reaching a contrary conclusion, the majority casts
Ahmed’s claims in extremely narrow terms, asserting,
for example, that ‘‘[his] excess of authority claim . . .
rests on the premise that equitable relief is ‘within the
scope of the arbitration agreement of the parties’ under
AAA Rule R-47 (a) only if the agreement expressly
authorizes that relief.’’ (Emphasis added.) The majority
also asserts that, ‘‘[b]ecause no express language of the
agreement authorizes application of the fugitive disenti-
tlement doctrine, Ahmed claims that its application is
contrary to laws and rules incorporated into the
agreement.’’
Throughout his appellate brief, Ahmed asserts that
the arbitration award must be vacated because the arbi-
trator’s disentitlement order contravened numerous
express provisions of the parties’ employment agreement
—‘‘specific AAA rule[s] setting forth specific, affirma-
tive procedural requisites for arbitration.’’ He further
contends: ‘‘Unsurprisingly, Oak does not, and cannot,
point to any provision of [the] employment agreement
that would authorize a total due process deprivation.
To the contrary, the arbitration clause provides that ‘any
arbitration procedures required by applicable federal
or state law’ ‘shall govern’ in any conflict. . . . The
governing law clearly requires arbitrators to accord par-
ties the procedural rights refused to . . . Ahmed. See
[Del. Code Ann tit. 10, § 5706 (2) (2013)] (‘[u]nless other-
wise provided by the agreement . . . [t]he parties are
entitled to be heard, to present evidence material to
the controversy and to cross-examine witnesses
appearing at the hearing’); [see also General Statutes]
§ 52-418 (a) (3) (arbitrators required to ‘hear evidence
pertinent and material to the controversy’ and to avoid
actions ‘by which the rights of any party’ are ‘preju-
diced’); 9 U.S.C. § 10 (a) (3) [2018] (same). Application
of the [fugitive] disentitlement doctrine thus violated
the parties’ [agreement].’’ (Citation omitted.) Ahmed
further argues that the arbitrator, under the guise of
fashioning an award, ignored ‘‘AAA rule[s] setting forth
specific, affirmative procedural requisites for arbitra-
tion. . . . [Rule R-22]—the AAA rule that [Rule R-23]
was designed to enforce—specifically establishes that
arbitrators are affirmatively required to [safeguard]
each party’s opportunity to fairly present its claims and
defenses. . . . Plainly, the opposite happened here.
Critically, in addition to the foregoing, [Rule R-32 (a)]
instructs that, although [t]he arbitrator has the discre-
tion to vary the procedure of an arbitral proceeding,
his discretion is cabined by the requirement that the
parties are treated with equality and that each party
has the right to be heard and is given a fair opportunity
to present its case.’’ (Citations omitted; emphasis omit-
ted; internal quotation marks omitted.)
I disagree with the majority’s assertion that, ‘‘although
Ahmed mentions in his brief to this court the United
States Supreme Court’s reference to the ‘sanction of
disentitlement’ in his discussion of Degen v. United
States, 517 U.S. 820, 828, 116 S. Ct. 1777, 135 L. Ed.
2d 102 (1996), he does not characterize the [fugitive
disentitlement] doctrine as a sanction that would be
governed by the conditions for imposing sanctions con-
tained in AAA Rule R-58 . . . .’’ When Ahmed describes
the arbitrator’s ruling as ‘‘a total due process depriva-
tion,’’ it advances his contention that the order consti-
tuted an extreme sanction. The same is true when he
asserts: ‘‘Oak was unable to identify a single Delaware
case supporting the breadth of disentitlement ordered
here. . . . Ahmed did not engage in any wrongdoing
in the arbitration warranting the imposition of a sanc-
tion—and, critically, the arbitrator never said he did.’’
(Emphasis omitted.) In sum, Ahmed has argued that
the arbitrator’s order stripping him of his right to partici-
pate in the arbitration was a severe sanction unwar-
ranted by anything he did during the proceedings.
The majority contends that my concerns regarding
the arbitrator’s failure to abide by the arbitration clause
in the parties’ agreement can be sidestepped because
Ahmed presents his claim of error to this court without
mentioning AAA Rule R-58 by name or specifically refer-
ring to its contents. Although I understand the legiti-
mate concerns underlying the majority’s point, I do not
agree that we can or should ignore the rule violations
at issue, which are plainly subsumed within Ahmed’s
claim that the arbitrator ‘‘exceeded his authority’’ under
‘‘the AAA rules’’ by ‘‘impos[ing] . . . a sanction’’ for
conduct other than ‘‘wrongdoing in the arbitration
. . . .’’ Ahmed’s failure to cite a particular rule is not
fatal to his claim because ‘‘it is well established that
we may . . . review legal arguments that differ from
those raised by the parties if they are subsumed within
or intertwined with arguments related to the legal claim
before the court.’’ (Internal quotation marks omitted.)
Meribear Productions, Inc. v. Frank, 340 Conn. 711,
732, 265 A.3d 870 (2021). Ahmed’s claim is that the
arbitrator ‘‘exceeded his authority’’ by depriving him of
his procedural rights under ‘‘the AAA rules.’’ This claim
is broad enough for us to consider all of the AAA rules
that the arbitrator’s conduct may have violated. It
requires us to consider both whether the arbitrator’s
conduct violated any of the AAA rules and whether
any AAA rule authorizes the arbitrator’s conduct. In
conducting this inquiry, we are not limited to the partic-
ular rules that are named by each party. Indeed, I do
not see how it is possible for us to consider whether
the arbitrator exceeded the scope of his authority under
any of the rules without understanding the rules as
a whole.
Ahmed has made this claim consistently throughout
this litigation. In his application to vacate the arbitration
award, which he submitted as a self-represented party,
Ahmed argued that the award should be vacated
because ‘‘[t]he arbitrator’s powers are defined by and
limited to the terms of the underlying agreement,’’ and
the arbitrator’s decision was not authorized by the
terms of the agreement, including AAA Rule R-47 (a).
In his reply to Oak’s opposition to his application to
vacate, which he also submitted as a self-represented
party, Ahmed clarified that ‘‘[t]here is no rule anywhere
that says that [he] could not respond to dispositive
motions. It would be a completely one-sided matter
(which it was) to not allow responses or to not allow
litigants to offer evidence in response to dispositive
motions.’’ (Emphasis in original.) For its part, Oak took
a broad view of Ahmed’s claim, describing it as a
‘‘kitchen sink filing,’’ stating that ‘‘Ahmed claims that
the arbitrator . . . exceeded his authority in [applying
the fugitive disentitlement doctrine]’’ and arguing that
‘‘[t]aking the AAA rules and Delaware law together, it
was plainly . . . within the scope of the arbitrator’s
authority to determine whether the doctrine applied
here.’’ In its filings, Oak refers repeatedly to ‘‘the AAA
rules’’ in general as a source of authority for the arbitra-
tor’s actions, and Ahmed follows this practice in his
brief on appeal. Consistent with the foregoing, during
oral argument before this court, Ahmed’s counsel
argued that the arbitrator’s actions violated the AAA
rules in general, although he identified Rules R-23, R-
32, and R-58 specifically. In fact, he argued that ‘‘Rule
R-58 expressly precludes’’ the arbitrator’s conduct in
this case because ‘‘there was no finding whatsoever
that . . . Ahmed did anything sanctionable . . . .’’7 In
short, there is no suggestion in these filings and argu-
ments that the scope of Ahmed’s claim, or Oak’s reply,
has ever been limited to particular AAA rules identified
by number.
The fact that the arbitrator decided the case on a
dispositive motion without allowing Ahmed any oppor-
tunity to be heard on that motion was emphasized by
Ahmed multiple times in his application to vacate the
arbitration award, was emphasized again in his reply
to Oak’s opposition to his application to vacate, is
quoted on the very first page of the trial court’s memo-
randum of decision, and is raised repeatedly in his brief
on appeal. Against this background, the majority’s con-
tention that this fact should be disregarded because it
enters the case only through ‘‘a single sentence footnote
in Ahmed’s brief’’ is difficult to understand.8
Because I conclude that the arbitrator exceeded his
authority under the arbitration clause in the parties’
agreement by denying Ahmed his procedural right to
assert claims, to present evidence, and to contest Oak’s
claims in clear violation of the AAA rules, I would
reverse the judgment of the trial court and remand the
case to that court with direction to vacate the arbitra-
tion award. The case law makes clear that, when an
arbitrator violates an arbitration agreement in the man-
ner that occurred in this case, the resulting award has
no legal sanction and must be vacated.
II
I also disagree with the majority that the arbitrator
did not engage in misconduct under § 52-418 (a) (3) by
denying Ahmed an opportunity to present evidence and
argument at a hearing on the merits of the parties’
respective claims. By its express terms, § 52-418 (a) (3)
mandates that the arbitrator hear evidence from the
parties that is ‘‘pertinent and material to the controversy
. . . .’’ It also mandates vacatur of an arbitral award
when the arbitrator engages in ‘‘any other action by
which the rights of any party have been prejudiced
. . . .’’ General Statutes § 52-418 (a) (3). Section 5706
of title 10 of the Delaware Code Annotated, which is
a procedural, rather than a vacatur, statute,9 confers
procedural rights on parties to an arbitration. It
expressly mandates that the arbitrator hold a hearing on
the merits of the parties’ dispute, and, upon complaint
of one of the parties, it authorizes the court to intervene
and order the arbitrator ‘‘to proceed promptly with the
hearing . . . .’’ Del. Code Ann. tit. 10, § 5706 (1) (2013).
Subdivision (2) of the statute further provides that, in
addition to the right to be heard and to present material
evidence, the parties are ‘‘entitled . . . to cross-exam-
ine witnesses appearing at the hearing.’’ Del. Code Ann.
tit. 10, § 5706 (2) (2013). Because the arbitrator in the
present case did not conduct a hearing, much less allow
Ahmed to present material evidence and to cross-exam-
ine Oak’s witnesses, he deprived Ahmed of his rights
under both Connecticut and Delaware law, and, there-
fore, he committed misconduct under § 52-418 (a) (3).
None of the cases cited by the majority supports the
proposition that an arbitrator, solely on the basis of the
general grant of authority conferred on him by AAA
Rule R-47 (a) to fashion an award, can deprive a party
of his or her statutory right to a hearing, to present
evidence, and to cross-examine witnesses. Indeed, if an
arbitrator could do so, it would render the protections
afforded under § 52-418 (a) (3) and § 5706 (2) of title
10 of the Delaware Code Annotated—the terms of
which are cast in mandatory language—entirely illu-
sory. Even if Rule R-47 (a) reasonably could be read
so expansively, the parties’ employment agreement
expressly provides that, ‘‘[t]o the extent that any of
the [AAA] [r]ules or anything in this arbitration clause
conflicts with any arbitration procedures required by
applicable federal or state law, the arbitration proce-
dures required by applicable law shall govern.’’ In this
instance, therefore, the procedures mandated by § 5706
(1) and (2) of title 10 of the Delaware Code Annotated
must govern.
In the present case, the arbitrator decided the case
by applying the fugitive disentitlement doctrine without
hearing from Ahmed or providing him with an opportu-
nity to be heard on the issue. The arbitrator granted
Oak’s motion to apply the fugitive disentitlement doc-
trine before hearing from Ahmed and before the June
8, 2020 deadline that had been set for Ahmed’s response
to other motions. It was in every sense an ex parte ruling
because the arbitrator granted Oak’s motion without
providing Ahmed an opportunity to respond.
Federal and state courts have consistently held that
vacatur is warranted when the arbitration proceedings
were fundamentally unfair. See, e.g., Kolel Beth Yechiel
Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729
F.3d 99, 107 (2d Cir. 2013).10 They also ‘‘agree that a
fundamentally fair hearing requires . . . [an] opportu-
nity to be heard . . . .’’ Bowles Financial Group, Inc.
v. Stifel, Nicolaus & Co., supra, 22 F.3d 1013. ‘‘[A]n
arbitration award will [therefore] be vacated when the
parties have agreed to a hearing yet one of the parties
has been denied the opportunity to be heard . . . .’’
MasTec North America, Inc. v. MSE Power Systems,
Inc., 581 F. Supp. 2d 321, 327 (N.D.N.Y. 2008). Delaware
law, which was specifically chosen by the parties in
this case to govern their arbitration, is clear that, even
in arbitration, ‘‘[t]he parties are entitled to be heard
. . . .’’ Del. Code Ann. tit. 10, § 5706 (2) (2013). This
principle of basic legal fairness has been applied to
arbitrations for more than 100 years. See, e.g., Stockwell
v. Equitable Fire & Marine Ins. Co. of Providence, R.I.,
134 Cal. App. 534, 541, 25 P.2d 873 (1933) (‘‘although
arbitrators are not bound by strict rules of evidence,
they cannot transgress that fundamental principle of
justice which declares that no man shall be condemned
without the opportunity of being heard’’ (internal quota-
tion marks omitted)); Cassara v. Wofford, 55 So. 2d 102,
106 (Fla. 1951) (‘‘it is universally held that in arbitration
proceedings . . . persons whose rights and obligations
are affected thereby have an absolute right to be heard
and to present their evidence, after reasonable notice
of the time and place of the hearing’’); Thornton v.
Thornton, 159 S.W. 532, 534 (Ky. 1913) (‘‘we cannot
sanction [an arbitral award] rendered in . . . an ex
parte proceeding [when] one party has had no opportu-
nity to controvert the evidence of his adversary taken
in his absence’’); Page v. Ranstead, 92 Mass. (10 Allen)
295, 298 (1865) (‘‘[t]here is no question of the correct-
ness of the general proposition, that when a case is
submitted to arbitration, it is the duty of the arbitrator
to give the parties an opportunity to be heard, if they
desire it, before making an award’’). The principle is
even afforded its own illustration in the proposed final
draft of the Restatement (Third) of the U.S. Law of
International Commercial and Investor-State Arbitra-
tion. See Restatement (Third), U.S. Law of International
Commercial and Investor-State Arbitration § 4.19, illus-
tration (3) p. 707 (Proposed Final Draft 2019) (‘‘Over
the objection of B, an arbitral tribunal decides on the
strength of A’s written submissions alone to issue an
award in favor of A without permitting counter-submis-
sions by B. A seeks to enforce the award, and B chal-
lenges the award on the ground that the arbitral tribunal
committed misconduct in refusing to permit counter-
submissions. A court may refuse to enforce the award.’’).
The principle that each party is entitled to an opportu-
nity to be heard is so fundamental to our conception
of fairness that it is a rare case in which it is trans-
gressed. When it is violated, vacatur is consistently the
result. For example, in one case, a procedural oversight
led an arbitral panel to rule in favor of the petitioner,
without affording the respondent an opportunity to
present his case on the merits. In re Arbitration of
Certain Controversies Between Cofinco, Inc., & Bak-
rie & Bros., N. V., 395 F. Supp. 613, 614–15 (S.D.N.Y.
1975) (Cofinco, Inc.). The District Court held that,
although ‘‘the [AAA] rules strongly [support] arbitral
judgments as final within the province the parties have
given to their chosen forum [and] only a miniscule pro-
portion of awards is vulnerable in court . . . [t]he
award . . . falls squarely and patently within this
minute class.’’ Id., 615.11 In another case, also conducted
under the AAA rules, an arbitral panel entered a preclu-
sion order barring one party from participating in the
case. Coty Inc. v. Anchor Construction, Inc., Docket
No. 601499-02, 2003 WL 139551, *2 (N.Y. Sup. January
8, 2003), aff’d, 7 App. Div. 3d 438, 776 N.Y.S.2d 795
(2004). The reviewing court held that ‘‘[d]ue process in
arbitration means satisfying ‘minimal requirements of
fairness’ ’’ and that the preclusion order violated funda-
mental fairness by denying a party ‘‘the opportunity to
be heard . . . .’’ Id., *7. In a third case, a ‘‘[u]nion was
not given an opportunity to complete its presentation
of proof regarding the arbitrability and/or merits of
the grievances then under consideration.’’ Teamsters,
Chauffeurs, Warehousemen & Helpers, Local Union No.
506 v. E.D. Clapp Corp., 551 F. Supp. 570, 578 (N.D.N.Y.
1982), aff’d, 742 F.2d 1441 (2d Cir. 1983). The District
Court held that, because ‘‘the [u]nion was not given the
chance to present its case in full, the subject awards
cannot stand.’’ Id. The majority has not identified any
case in which a court has enforced an arbitral award
that was decided on an ex parte dispositive motion,
without allowing each side an opportunity to be heard.
Even if we were to defer to the arbitrator’s decision
to apply the fugitive disentitlement doctrine, there can
be no justification for the arbitrator’s failure to permit
Ahmed an opportunity to be heard on whether the doc-
trine should be applied. The arbitrator offered no such
justification in his order applying the doctrine; nor can
one be found in the doctrine itself. There is no authority
for the proposition that the fugitive disentitlement doc-
trine can be applied without providing each side an
opportunity to be heard on whether the doctrine should
be applied. This court has established a burden shifting
framework for applying the doctrine that explicitly con-
templates that each side will have an opportunity to be
heard. See State v. Brabham, 301 Conn. 376, 386, 21
A.3d 800 (2011).
The majority concludes that, even if the arbitrator
engaged in misconduct within the meaning of § 52-418
(a) (3), Ahmed has failed to establish that he was preju-
diced by the arbitrator’s actions. To demonstrate preju-
dice in Connecticut, Ahmed was required to show that
the ‘‘ruling [likely] would [have] affect[ed] the result.’’
(Internal quotation marks omitted.) Bridgeport v. Kasper
Group, Inc., 278 Conn. 466, 476–77, 899 A.2d 523 (2006).
The majority concludes that Ahmed has failed to meet
this burden because ‘‘[h]is brief to this court identifies
no evidence, documentary or testimonial, that he had
been prepared to offer if a hearing on liability had taken
place. He makes no representation that he would have
testified as to any specific material fact that could have
cast doubt on his culpability for the acts alleged. Nor
does he claim that he had any other basis, through
cross-examination or otherwise, to impeach Oak’s alle-
gations.’’ I disagree.
As an initial matter, a ruling on a dispositive motion
that decides the issue of liability certainly affects the
case. The arbitrator’s application of the fugitive disenti-
tlement doctrine not only affected the result, in a very
real sense, it was the result. This is not a case in which
the excluded testimony of a particular witness or a single
ex parte email between the arbitrator and counsel may
or may not have altered the course of the proceedings.
Instead, the arbitrator, in one fell swoop, decided the
issue of liability against a party as a sanction, without
hearing evidence or receiving written briefing from the
party whose case was declared over before it began.
There can be no doubt that the result of the arbitration
was dictated by the application of the fugitive disenti-
tlement doctrine. The arbitrator’s decision to apply the
doctrine ex parte, without allowing Ahmed an opportu-
nity to respond, plainly affected the result of the arbi-
tration.
The majority requires Ahmed to identify evidence
and arguments that he would have made on the merits
had his case not been improperly dismissed. To require
this sort of explanation before vacating an arbitral
award issued in an arbitration proceeding that was dis-
missed before a hearing on the merits would subvert the
interests of judicial economy that arbitration is meant
to promote. To show prejudice, it is enough that the
arbitrator exceeded his authority by deciding the case
on an ex parte dispositive motion in contravention of
the AAA rules specified by the arbitration agreement.12
None of the three cases discussed previously, vacat-
ing arbitral awards for a denial of the opportunity to
be heard, required details of the specific evidence and
arguments that either party would have presented on
the merits, and none of them required proof that, but
for the denial of the opportunity to be heard, the arbitra-
tor(s) would have reached a different result on the
merits. See Teamsters, Chauffeurs, Warehousemen &
Helpers, Local Union No. 506 v. E.D. Clapp Corp.,
supra, 551 F. Supp. 578 (vacating award without consid-
ering details of arguments and evidence not presented
or either party’s likelihood of success on merits); In re
Certain Controversies Between Cofinco, Inc., & Bak-
rie & Bros., N. V., supra, 395 F. Supp. 616 (vacating
award and remanding to arbitration panel for new hear-
ing without considering details of arguments and evi-
dence not presented or either party’s likelihood of
success on merits); Coty Inc. v. Anchor Construction,
Inc., supra, 2003 WL 139551, *4, *12 (vacating award
and remanding to arbitration panel for new hearing
without considering details of arguments and evidence
not presented or either party’s likelihood of success,
and noting that ‘‘the record does not clearly demon-
strate what evidence was precluded’’).
Courts that have considered similar or lesser proce-
dural claims under comparable or identical statutes
have likewise held that deprivations of the type that
occurred in the present case are prejudicial per se,
requiring vacatur as a matter of law. See, e.g., United
States Life Ins. Co. v. Superior National Ins. Co., 591
F.3d 1167, 1174 (9th Cir. 2010) (under applicable statute,
‘‘the phrase ‘refusing to hear evidence pertinent and
material to the controversy’ necessarily implies preju-
dice to the rights of a party, without regard to the final
catch-all phrase’’); Tempo Shain Corp. v. Bertek, Inc.,
120 F.3d 16, 20 (2d Cir. 1997) (‘‘although not required
to hear all the evidence proffered by a party, an arbitra-
tor must give each of the parties to the dispute an
adequate opportunity to present its evidence and argu-
ment’’ (internal quotation marks omitted)); Talel Corp.
v. Shimonovitch, 84 So. 3d 1192, 1194 (Fla. App. 2012)
(‘‘the failure of arbitrators to give notice and an opportu-
nity to be heard is such misconduct or misbehavior as
will vitiate an award, irrespective of the fact that there
may have been no corrupt intention on the part of the
arbitrators’’ (internal quotation marks omitted)); Talel
Corp. v. Shimonovitch, supra, 1194 (‘‘[b]y failing to hold
a hearing on unliquidated damages, the arbitrator
refused to hear evidence material to the controversy
and thereby prejudiced substantially the rights of the
defendants’’ (internal quotation marks omitted));
Heartland Surgical Specialty Hospital, LLC v. Reed,
48 Kan. App. 2d 237, 246, 287 P.3d 933 (2012) (‘‘courts
[are required] to vacate an arbitration award if the arbi-
trator(s) failed to conduct a hearing as provided under
[the applicable statute]’’); Graham v. Wall, 938 S.W.2d
892, 893 (Ky. App. 1997) (‘‘[When] the arbitration agree-
ment does not contain an express waiver of a hearing
the parties are entitled [by statute] to an opportunity to
be heard, [to] present evidence, and [to] cross-examine
witnesses . . . . Because the arbitrators’ decision is
procedurally flawed, we do not address the substantive
issues raised. This case is reversed and remanded and
. . . the arbitrators [are ordered to] conduct a hearing
in accordance with [the applicable statue].’’ (Citations
omitted.)); Volkmann v. Volkmann, 688 N.W.2d 347,
348–49 (Minn. App. 2004) (Under applicable statute,
‘‘[t]he parties are entitled to be heard, to present evi-
dence material to the controversy and to cross-examine
witnesses. . . . Not allowing one party to hear,
respond to, or cross-examine the other constitutes con-
duct that prejudice[s] substantially the rights of a
party.’’ (Citation omitted; internal quotation marks
omitted.)); Bates v. McQueen, 270 Va. 95, 102–103, 613
S.E.2d 566 (2005) (‘‘[A]s the parties stipulated, there
was no hearing before the arbitrators . . . . Without
the hearing having taken place, it was not necessary
for [the appellant] to prove that his rights were substan-
tially prejudice[d] or that evidence he would have pre-
sented was material to the controversy in order to have
the arbitration award vacated under [the applicable stat-
ute]. . . . In short, the failure to conduct [a] hearing
. . . was tantamount to no arbitration. Unless parties
agree otherwise, a hearing is a fundamental part of the
arbitration process because [t]he arbitrators are the
final judges of both law and fact, their award not being
subject to reversal for a mistake of either.’’ (Citations
omitted; internal quotation marks omitted.)); see also
Gainesville v. Communications Workers of America,
Local No. 3170, Docket No. 1D21-32, 2022 WL 1089250,
*3 (Fla. App. March 23, 2022) (‘‘The arbitrator’s sum-
mary disposition of the claim substantially prejudiced
the [u]nion’s rights because the [u]nion never got a full
hearing with a chance to present evidence. . . . The
[c]ity . . . contends that no prejudice could have
resulted, stressing that the [u]nion has yet to present
any evidence that would have changed the result. But
the [c]ity cites nothing that requires a party to prove
as much to establish substantial prejudice. Taking the
[c]ity’s proposed rule to its logical extent, a party could
never be prejudiced when an arbitrator decides an issue
‘as a matter of law.’ In other words, an arbitrator could
immediately decide a case, without notice, consent, or a
hearing, and the losing party would be without recourse
just because the nature of the arbitrator’s decision pre-
cludes hearing evidence. This rule would directly con-
tradict the basic principle that parties are entitled to a
‘fundamentally fair hearing’ which includes ‘an opportu-
nity to be heard and to present evidence.’ ’’).
Even if Ahmed were required to demonstrate preju-
dice above and beyond the denial of a hearing, as the
majority contends, he has met that burden. The majority
concludes that Ahmed has failed to satisfy his burden
because he does not argue on appeal that the arbitra-
tor’s refusal to hold a hearing on liability was prejudi-
cial. Once again, I disagree with the majority’s reading
of Ahmed’s brief to this court. Contrary to the majority’s
assertion, in his brief, Ahmed argues that the arbitrator’s
actions deprived him of the right to recover $35 million
of personal assets that were held in an account at Oak.
As the trial court explained, ‘‘[i]n connection with his
termination, [Oak] claimed a contractual right to seize
certain vested assets earned by [Ahmed] but which were
still in [Oak’s] possession. These assets were deemed
forfeited to [Oak] based on [Oak’s] interpretation of its
contractual rights.’’ The trial court further explained
that, because of the arbitrator’s disentitlement order,
‘‘[t]here has been no adjudication relating to the propri-
ety of the forfeiture,’’ which Ahmed had raised as a
counterclaim in the arbitration case.13 In his brief,
Ahmed argues that, ‘‘[a]s a disputed issue of contract
bearing directly on Oak’s recovery in the arbitration,
[he] had every right to challenge the seizure [of that
money], either as a counterclaim or otherwise.’’ Because
of the arbitrator’s actions, however, Ahmed was denied
the opportunity to litigate that claim. Ahmed further
argues that, ‘‘[h]ad [he] been allowed to testify at the
liability hearing, he would have been able to offer fur-
ther evidence of Oak’s complicity [in the alleged fraud],
including the fact that Oak’s management exercised
little to no supervision of his activities, and the fact that
Oak regularly received money from Ahmed’s personal
account and yet wilfully did not question the source of
those funds for over eleven years.’’ This testimony bore
directly on Ahmed’s defenses of laches and unclean
hands, among others, and on whether the facts of the
case supported an award of punitive damages. In light
of the foregoing, Ahmed has demonstrated that he was
prejudiced by the disentitlement order.
In Seagate Technology, LLC v. Western Digital Corp.,
supra, 854 N.W.2d 750, the Minnesota Supreme Court
considered a similar challenge to an arbitration award
under § 572.19, subd. 1 (3) and (4), of the Minnesota
Statutes,14 the language of which is nearly identical to
Connecticut’s and Delaware’s statutes. The plaintiff in
that case, Seagate Technology, LLC, commenced an
arbitration proceeding against the defendants, Sining
Mao, a former employee, and Western Digital Corpora-
tion (Western Digital), Mao’s new employer, seeking to
recover damages for Western Digital and Mao’s misap-
propriation of the plaintiff’s trade secrets. Id., 753–54.
Prior to the arbitration hearing, the plaintiff filed a
motion for punitive sanctions based on Mao’s alleged
fabrication of evidence. Id., 755. Specifically, the plain-
tiff requested an order precluding Western Digital and
Mao from presenting any evidence or defense that dis-
puted the validity of the plaintiff’s asserted trade secrets,
the misappropriation of those trade secrets, or that
Western Digital had used those trade secrets. Id. West-
ern Digital and Mao responded by requesting that the
arbitrator defer action on the motion until the arbitra-
tion hearing concluded, which request the arbitrator
granted. Id.
Following the hearing, the arbitrator ‘‘concluded that
Mao’s fabrication of evidence and Western Digital’s
complicity by submitting the obviously fabricated evi-
dence to the [a]rbitrator [were] an egregious form of
litigation misconduct and warrant[ed] severe sanctions.
The arbitrator then cited Harris Trust & Savings Bank
v. Ali, [100 Ill. App. 3d 1, 10, 425 N.E.2d 1359] (1981),
[for the proposition] that [w]hen evidence is . . . fabri-
cated, a presumption arises that the cause of action
or the defense it was intended to support is without
substantial foundation. . . . The arbitrator imposed
the following sanctions against Western Digital and
Mao: [1] [p]reclusion of any evidence or defense . . .
disputing the validity of [certain of the plaintiff’s trade
secrets] . . . [2] [p]reclusion of any evidence or
defense . . . regarding misappropriation by Western
Digital and Mao of [those trade secrets] . . . [3] [p]re-
clusion of any evidence or defense by Western Digital
disputing that it has used or is using [the trade secrets]
. . . in Western Digital’s manufactured [products] . . .
and [4] [e]ntry of judgment against Western Digital and
[Mao as to] liability for misappropriation and use of
[the trade secrets] . . . .’’ (Internal quotation marks
omitted.) Seagate Technology, LLC v. Western Digital
Corp., supra, 854 N.W.2d 755–56.
On appeal to the Minnesota Supreme Court, Western
Digital and Mao argued that (1) the arbitrator exceeded
his authority under the parties’ arbitration agreement
in violation of § 572.19, subd. 1 (3), of the Minnesota
Statutes by issuing the punitive sanctions; id., 760; and
(2) the sanctions ‘‘violated the arbitrator’s duty [under
§ 572.19, subd. 1 (4), of the Minnesota Statutes] to hear
material evidence.’’ Id., 766. With respect to the first
claim, the court concluded that the sanctions ‘‘were
. . . authorized by the AAA [rules], which were incor-
porated into the arbitration agreement and allow[ed]
the arbitrator to grant ‘any remedy or relief that would
have been available to the parties had the matter been
heard in court including awards of attorney’s fees and
costs.’ ’’ Id., 763. Specifically, the court reasoned that
‘‘punitive sanctions fall within the ordinary meaning of
relief. Punitive sanctions can also be properly construed
as a remedy. . . . [T]he sanctions [in question] were
issued in part to redress a wrong, the fabrication of
evidence, which harmed [the plaintiff] during the arbi-
tration. Thus, the sanctions constitute a remedy pro-
vided to [the plaintiff].’’ (Citation omitted.) Id.
In reaching its determination, the court was careful
to note that ‘‘[t]he arbitrator’s ability to issue punitive
sanctions is controlled by the arbitration agreement.
. . . Therefore, parties are able to include or exclude
the use of punitive sanctions when constructing an arbi-
tration agreement, either through express provision or
through the incorporation of a particular set of arbitra-
tion rules.’’ (Citation omitted.) Id., 761. The court cited
AAA Rule R-58 (a) as an example of an express contract
provision delineating the circumstances under which an
arbitrator may impose punitive sanctions. Id., 761 n.8.
Because, unlike the arbitration agreement in the present
case, the agreement in Seagate Technology, LLC, did
not contain a rule limiting the arbitrator’s authority to
impose sanctions, the court concluded that the arbitra-
tor could issue the sanctions in question under the
arbitrator’s general authority to fashion relief. Id., 763.
Significantly, in deciding the second claim, the court
did not rely on the arbitrator’s general grant of authority
as a basis for upholding the denial of Western Digital
and Mao’s statutory right to present material evidence.
Rather, the court concluded that the arbitrator’s actions
did not violate § 572.19, subd. 1 (4), of the Minnesota
Statutes because the arbitrator ‘‘heard the challenged
evidence at the request of Western Digital and Mao and
conducted the hearing in accordance with [§ 572.12 of
the Minnesota Statutes], which requires that the parties
be heard, be allowed to present evidence material to
the controversy, and be allowed to cross-examine the
witnesses appearing at the hearing. Western Digital and
Mao’s challenge, therefore, centers not around the
admission of evidence, but rather around the arbitra-
tor’s failure to use that evidence when constructing the
final award. This challenge differs from our previous
case law concerning an arbitrator’s refusal to hear evi-
dence, which has generally involved preventing a party
from testifying or submitting certain evidence. . . .
‘‘The scope of [§ 572.19, subd. 1 (4), of the Minnesota
Statutes] is properly limited to situations involving the
presentation and admission of evidence at the hearing,
not situations involving the use or weighing of evidence
in constructing the final award or other form of relief.’’
(Citation omitted.) Id., 766. The court further stated
that ‘‘the entire focus of these statutes is [on] how the
hearing itself should be conducted, not the deliberation
process that happens after the hearing.’’ Id.
Thus, the court concluded that ‘‘it is appropriate to
read [§ 572.19, subd. 1 (4), of the Minnesota Statutes]
as a provision concerned with the . . . manner in
which the hearing is conducted, not as a provision lim-
iting the arbitrator’s authority to use, or [to] refuse to
use, certain evidence when providing relief or fashion-
ing an award after the hearing has been completed.
. . . Western Digital and Mao do not challenge any of
the arbitrator’s actions during the hearing, as [they]
were allowed to present their case in full and the arbitra-
tor received the evidence in question. But the arbitrator
chose not to factor this evidence into the final award
because of sanctions that were [imposed] and . . .
were permissible as within the arbitrator’s authority.
In short, Western Digital and Mao’s challenge, which
is primarily about the arbitrator’s refusal to use certain
evidence in fashioning the final award, is outside the
scope of [§ 572.19, subd. 1 (4), of the Minnesota Stat-
utes].’’ Id., 766–67.
In the present case, unlike in Seagate Technology, LLC,
Ahmed’s challenge falls squarely within the scope of
§ 52-418 (a) (3) and § 5706 (1) and (2) of title 10 of the
Delaware Code Annotated as it involves the arbitrator’s
refusal to conduct a hearing on the merits of the parties’
claims rather than the fashioning of the award at the
conclusion of the hearing. Thus, Seagate Technology,
LLC—in addition to the many other cases cited in this
opinion—compels the conclusion that the arbitrator’s
award must be vacated. I therefore respectfully dissent.
1
‘‘[Although] courts possess inherent judicial powers that enable them
to impose punitive sanctions . . . arbitrators have no correlating inherent
authority and receive their powers from either the arbitration agreement
. . . or the [l]egislature.’’ (Citations omitted.) Seagate Technology, LLC v.
Western Digital Corp., 854 N.W.2d 750, 761 (Minn. 2014), citing Chambers
v. NASCO, Inc., 501 U.S. 32, 44, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991).
2
The fugitive disentitlement doctrine, one of the most severe sanctions
a court can impose, is ‘‘the rule that a fugitive (usually a criminal one)
forfeits the right to appeal the judgment (usually a conviction) he’s fleeing.’’
In re Kupperstein, 943 F.3d 12, 15–16 (1st Cir. 2019). The policy behind the
doctrine is ‘‘to ensure that courts don’t waste time affirming a judgment
that can’t be enforced against the absconder.’’ Id., 24. In discussing the
fugitive disentitlement doctrine, the United States Supreme Court has stated
that ‘‘[c]ourts invested with the judicial power of the United States have
certain inherent authority to protect their proceedings and judgments in the
course of discharging their traditional responsibilities’’ but that ‘‘[p]rinciples
of deference counsel restraint in resorting to inherent power . . . and
require its use to be a reasonable response to the problems and needs that
provoke it . . . .’’ (Citations omitted.) Degen v. United States, 517 U.S. 820,
823–24, 116 S. Ct. 1777, 135 L. Ed. 2d 102 (1996). In re Kupperstein offers
an excellent primer on the doctrine, making clear the many reasons why,
even if the right to arbitrate were not wholly contractual, and even if the
arbitrator did not lack the inherent authority to impose punitive sanctions;
see footnote 1 of this opinion; the fugitive disentitlement doctrine would
still be inapplicable to this case. Among them is the fact that courts may
not use ‘‘the fugitive dismissal power to protect another court’s judgments
or proceedings, or to sanction contempt for orders other than the judgment
on review.’’ In re Kupperstein, supra, 23–24. Because Ahmed was not a
fugitive with respect to this case and had shown no contempt for any
arbitral rule or ruling, application of the fugitive disentitlement doctrine
was simply unwarranted.
3
Unlike Delaware, Connecticut does not mandate that the arbitrator con-
duct a hearing. General Statutes § 52-407oo titled ‘‘Arbitration process,’’
provides in relevant part: ‘‘(b) An arbitrator may decide a request for sum-
mary disposition of a claim or particular issue:
‘‘(1) If all interested parties agree; or
‘‘(2) Upon request of one party to the arbitration proceeding if that party
gives notice to all other parties to the proceeding and the other parties have
a reasonable opportunity to respond.
‘‘(c) If an arbitrator orders a hearing, the arbitrator shall set a time and
place and give notice of the hearing not less than five days before the hearing
begins. . . .’’ (Emphasis added.)
Thus, our arbitration procedure statute provides ‘‘if’’ the arbitrator holds
a hearing; General Statutes § 52-407oo; whereas Delaware’s statute provides
that the arbitrator ‘‘shall’’ hold a hearing unless the parties agree to forgo
one. Del. Code Ann. tit. 10, § 5706 (1) (2013).
4
Section 5714 of title 10 of the Delaware Code Annotated governs applica-
tions to vacate arbitration awards and mirrors the language of our vacatur
statute. See General Statutes § 52-418.
5
AAA Rule R-32 (a) provides: ‘‘The claimant shall present evidence to
support its claim. The respondent shall then present evidence to support
its defense. Witnesses for each party shall also submit to questions from
the arbitrator and the adverse party. The arbitrator has the discretion to
vary this procedure, provided that the parties are treated with equality and
that each party has the right to be heard and is given a fair opportunity to
present its case.’’
6
Ballentine’s Law Dictionary defines ‘‘award’’ in relevant part as ‘‘[t]he
decision, decree, or judgment of arbitrators determining the disputed matter
submitted to them.’’ Ballentine’s Law Dictionary (3d Ed. 1969) p. 116.
7
During oral argument before the trial court, Ahmed’s counsel made the
identical argument, emphasizing AAA Rule R-58 specifically but relying on
all of the AAA rules generally, stating: ‘‘Similarly, the AAA rules, and I won’t
belabor each and every rule, but, just to give Your Honor a flavor of what
the body of . . . [the] rules incorporated [in] the [parties’] agreement
requires . . . [Rule R-58] says . . . the arbitrator may not enter a default
award as a sanction. So, that’s quite plain. What the arbitrator invoked was
[Rule R-47 (a)], that’s in our brief, but that rule requires that any remedy
or relief . . . be within . . . the scope of the agreement of the parties.
And, as I’ve just explained, neither the employment agreement itself nor
the sources of law that it incorporates permit . . . such a [sanction] . . . .
In fact, they expressly forbid such a sanction. So . . . as our brief also
recites . . . the [AAA] rules also require safeguarding each party’s proce-
dural rights to examine evidence, present their case, [and] develop a full
record. And I’ll just quickly note . . . [that the] one rule [that] . . . give[s]
the arbitrator . . . the discretion to vary the procedure . . . [does so] pro-
vided that the parties are treated with equality that each party has the right
to be heard and is given a fair opportunity to present its case.’’
8
Even if Ahmed had not made the argument in this case, I disagree with
the majority’s assertion that the distinction in Meribear Productions, Inc.,
between claims and arguments does not apply in cases involving arbitration.
The two cases the majority cites for support address entirely different issues.
In Groton v. United Steelworkers of America, 254 Conn. 35, 757 A.2d 501
(2000), this court concluded that ‘‘an arbitral award that requires the
employer to reinstate an employee who has been terminated following his
conviction, [on] the basis of . . . a plea [of nolo contendere], of embezzling
the employer’s funds, violates public policy.’’ Id., 48. In support of that
conclusion, we noted that, although a nolo contendere plea is not generally
admissible to establish guilt in a court, it may be considered in an employ-
ment arbitration because of the ‘‘legitimate expectations of the employer
that are inherent in the employment context and that would be severely
undermined by requiring the reinstatement of an employee convicted of
embezzling his employer’s funds’’; id., 51; and because the limits that are
placed on the use of nolo contendere pleas by courts should not ‘‘necessarily’’
be extended to arbitration given the private nature of arbitration and our
‘‘deference to the arbitrator’s factual determinations.’’ Id., 52. In Blondeau
v. Baltierra, 337 Conn. 127, 252 A.3d 317 (2020), this court concluded that
‘‘the arbitrator did not exceed her authority’’ in a family law arbitration. Id.,
131. In neither of these cases is there any discussion of Meribear Produc-
tions, Inc., of the power of an appellate court to raise arguments sua sponte,
or of the preservation of claims and arguments for appeal. The only relevance
of Groton or Blondeau appears to be their recognition that different proce-
dural and evidentiary rules apply to courts and arbitrations (Groton) and
that arbitral awards receive deferential review (Blondeau). They provide no
authority, however, for the majority’s contention that Meribear Productions,
Inc., does not apply to cases involving arbitration.
9
See footnote 4 of this opinion.
10
‘‘Federal case law is instructive on this issue because . . . § 52-418 (a)
(3) essentially tracks the language of the federal statute governing arbitral
misconduct.’’ O & G/O’Connell Joint Venture v. Chase Family Ltd. Partner-
ship No. 3, 203 Conn. 133, 150 n.12, 523 A.2d 1271 (1987); see 9 U.S.C. § 10
(a) (3) (2018). New York law is similarly instructive because it contains a
statute that mirrors the language of § 5706 of title 10 of the Delaware Code
Annotated. See N.Y. C.P.L.R. 7506 (c) (McKinney 2013) (‘‘[t]he parties are
entitled to be heard, to present evidence and to cross-examine witnesses’’).
11
This precedent has been recognized in Connecticut and distinguished
by the fact that the respondent in Cofinco, Inc., ‘‘never had an opportunity
to present evidence on the merits.’’ Media Group, Inc. v. Notaro, Docket
Nos. CV-XX-XXXXXXX and CV-XX-XXXXXXX, 2002 WL 31898214, *3 (Conn. Super.
December 13, 2002).
12
The majority concludes that Ahmed would have been defaulted on the
merits anyway because he failed to attend the damages hearing that was
held on July 21, 2020. The difficulty with this conclusion is that it holds
Ahmed responsible for conduct that never occurred as a result of the very
order under review, which barred him from contesting liability. It is for
good reason that Ahmed does not, in the words of the majority, ‘‘make the
bizarre contention that (a) he would not have claimed to be unable to attend
a [July 21, 2020] hearing had the hearing proceeded as one for liability rather
than damages, or (b) he still would have claimed to have been unable to
attend but nonetheless would have attended if the hearing was to determine
liability.’’ Such a contention would indeed be bizarre because we do not
require a party to prove prejudice by means of hypothetical speculation in
a case that was erroneously decided against him.
13
As summarized by the trial court, ‘‘[Ahmed’s] response [to Oak’s state-
ment of claims in the arbitration proceeding] asserted numerous defenses
directed to both liability and damages (including laches, contributory negli-
gence and set-off), as well counterclaims, most notably seeking restoration
of the assets that [Oak] had treated as forfeited.’’ The arbitrator dismissed
Ahmed’s counterclaims as part of the disentitlement order. Notably, in that
same order, the arbitrator denied Ahmed’s motion for summary judgment
on the ground that the facts underlying his claims, including his forfeiture
claim, were disputed.
14
Section 572.19, subd. 1, of the Minnesota Statutes (2010) provides in
relevant part: ‘‘Upon application of a party, the court shall vacate an award
where . . . (3) The arbitrators exceeded their powers [or] (4) The arbitra-
tors refused . . . to hear evidence material to the controversy or otherwise
so conducted the hearing, contrary to the provisions of section 572.12, as
to prejudice substantially the rights of a party . . . .’’
Section 572.12 of the Minnesota Statutes (2010) provides in relevant part:
‘‘Unless otherwise provided by agreement . . . (b) [t]he parties are entitled
to be heard, to present evidence material to the controversy and to cross-
examine witnesses appearing at the hearing.’’