Marc J. Goldstein Arbitrator & Mediator NYC
August 31, 2009

U.S. Public Policy as Basis to Deny Enforcement of Arbitration Agreement: More Discussion of the Thomas v. Carnival Corp. case

At the Kluwer Arbitration Blog you will find an interesting comment by Paul Friedland on the Thomas v. Carnival Corp. decision of the Eleventh Circuit. I commented on the Thomas case here on July 7, 2009.Below is the text of my comment today posted on the Kluwer Arbitration Blog.

The concerns you mention are serious ones; yours is a different and insightful reading of a case discussed in my Arbitration Commentaries on July 7, 2009. ( — “U. S. Public Policy As Basis to Nullify Arbitration Agreement: Beyond the Bounds of Mitsubishi?”)

What troubles me most about Thomas is the position that any waiver, in an arbitration agreement combined with a choice of law clause, of remedies conferred by a US federal statute, violates US public policy and brings about at least partial nullity of the arbitration clause. That is not what the Supreme Court said in the famous Mitsubishi footnote — and US law per Mitsubishi is in harmony with transnational principles that only an offense against fundamental (and some would say international) public policy will result in invalidation of an arbitration agreement or denial of recognition of an award under the Convention.

You are clearly right that notions of unconscionability in some employment contracts motivated the Thomas decision. Perhaps other courts will distinguish the Thomas case on that basis.

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