commercial arbitration class 6

recap:

if the claim went beyond the arbitration clause to the rest of the contract, this was not a matter for the arbitrator.

conflict between the federal and state rule. but SCOTUS says that erie doesn't apply because the roots of FAA are in the commerce clause which authorizes the fed to regulate interstate commerce under the supremacy clause. federal principles govern whenever an arbitration is under interstate commerce.

this begins the idea that in a diversity case, if the federal law of arbitration and state law conflicted the FAA would control, and the state rule would not apply despite Erie.

this still leaves a more fundamental question: given that federal court juris over federal matters involving interstate commerce would only exist in situations wehere a federal stat claim was involved, the practicality is that the vast majority of arbitratble matters involving interstate commerce will wind up in state and not federal court --- what if the state had rules concerning arbitration that are different than the case law principles articulated by the FAA? what if those differences impacted on arbitrability with the state principle being more restrictive than the federal rule? how could the state law be in violation of the federal policy?

2. state law must be applicable to all contracts
because section 2 of the FAA says that the defense must be inapplicable to contracts in general, and not just one that singles out arbitration.
this suggests that if a state legislature provides in a statute that a certain statute and the claims under it would not be subject to arbitration, then this might not be something a state can do. under state case law, if there were restrictions as to arbitrability, this might be something that states can't do. and remember that the vehicle to get before SCOTUS is under 28 USC that would allow them to take a case from the highest court of the state if it believes the court would offend SCOTUS principles.

keating.
not arbitratble if the FAA says so, or if federal determined that the status would be undermined by arbitration. the issue is, should the states have the same latitude that congress would have? the only basis for a negative answer would be that
the state does not have this power -- the idea that there is such a strong federal pro arbitrability, the states can't limit under their statutes! this is almost mind-boggling!!

the argument is that the only reason the congress put interstate into the Act is because otherwise the federal court might not have jurisdiction. is this a good argument?

remember citizen's bank, where scalia/thomas wrote that the FAA application is wrong.

even if you do have preemption in the state courts, you don't have necessarily preemption of public policy and so if the fed can't say (.... ) why can't the states? weiskopf doesn't know either.

what if there's a federal statute that exempts certain franchises from arbitrations, but then a state has a similar law that comports with the federal but that both are opposed to the FAA?

what about the forum shopping concerns? under Erie, you would apply state law if outcome determinative. but in a

see s. 2 -- you can interpret if you're using an enforcement recognized? what about public policy???

doctor's associates --

the tougher it is to waive the right, the more pro arbitratable it is.

but also, the more you can waste court time, it can be a problem, no matter how pro arbitrable you are.

affirmatively pleading arbitrability - you can compel. which is wacky. but the theory is that a motion to dismiss doesn't go to the merits of the case. going for summary judgment is different.

arbitrability also has to do with how the arbitration clause is construed -- the state court uses the FAA proarbitrability to give strange basis for claims. plus, the interpretation of contract is a matter of state law. so the way this turnes out -- the state law principles of contract construction can be used unless you use a result that is anti arbitration.

where are states free to impose thier own rules on arbitrable process without running afowl of preemption?

in many states including NYS, the tendency is to resolve arbitration cases on paper.

as long as it an arbitratbility issue in court, then they're done. that's pretty pro-arbitration.
the federal system doesn't have that in the FAA. if you don't use the CPLR 5-03(c), you run the risk that you proceede and if the opponent is against it, a year after, a challenge to the award can raise the arbitrability issue. a baiss for throwing out the award is that the powers were exceeded.

the parties contractual choice gives way.

the bulk case

see the housing case in the notes
not so broad that the parties couldn't adopt them.

can't award punitive damages garry. the problem?
brokerage firms and employers would say in the contract that disputes were governed by new york law in the hop tht arbitrator could throw out of court. after a while, the

not only is the contract held to new york law, but the courts have held that it's a no-no for a party to attempt to withold the remedies that would be available in court under statutory claims.