*1 HARGRAVE, C.J., LAVENDER, JJ., SUMMERS,
DOOLIN and concur.
KAUGER, J., part concurs part.
dissents in
SIMMS, J., judgment. concurs WILSON, JJ., ALMA
HODGES and
dissent. INC., REYNOLDS,
DEAN WITTER
Plaintiff-Appellee, SHEAR, Defendant-Appellant.
Warren No. 73947. Kirk, McKinney, Stringer David W. & Supreme Court of Oklahoma. Webster, P.C., City, plaintiff- Oklahoma appellee. July Pierce, Kathy Peter G. III and G. Mer-
veldt, Carson,
Mueller,
Pierce &
Oklahoma
City,
defendant-appellant.
OPALA, Vice Chief Justice.
whether,
dispositive
issue
provi-
face of an enforceable choice-of-law
sion which New York law is to
disputes arising
out of the
can invoke Oklahoma’s fundamental law to
challenge
validity
of the same con-
tract’s arbitration clause. We answer in
negative.
Reynolds, Inc.,
a securities
[broker],
dealer
obtained
against
customers,
award
one of its
War-
[customer],
ren Shear
on a
based
commodi-
trading
Although
ties
debt.
Agreement” pro-
had
a “Customer
viding
“[a]ny controversy
... shall be
arbitration,”
par-
settled
he refused to
obtaining
1. The terms of the arbitration clause in suit are:
of either the Arbitration Committee
of the Chamber of Commerce of the State of
"Any controversy
you
between
and the under-
York,
signed arising
relating
New
ciation,
or the American Arbitration
out of
Asso-
to this con-
therеof,
tract or the breach
or the Board of Arbitration of the
settled
rules,
Exchange,
arbitration in accordance with the
then
New York Stock
as the under-
*2
dispute
dismissed in accordance with a rule of the
ticipate
nonjudicial
in the
resolution
Exchange
New York
Board of Arbi-
Stock
process.
3)
tration and
the arbitration clause itself is
to
of the Uniform Arbi-
Pursuant
void under Art.
Okl.
Con-
Const.3
seq.]
Act2
et
tration
O.S.1981 §§
[15
tending
disputed
that no
issues of fact ex-
brought
proceeding
this
the broker then
ist,
sought
“summary
judg-
the brоker
district court
to transmute
the award
the
argued the
ment.”
It was
customer could
judgment.
an
into
executable Oklahoma
pro-
not
effects of the
avoid the
arbitration
by asserting
The customer
resisted
three
because, among
things,
cess
other
he failed
1)
cannot
defenses:
the arbitration award
stay
proceeding4
to seek
of the
or
notice of his
stand because the broker —on
resulting
vacation
the
award.5 The cus-
of
to obtain a
refusal
arbitrate —failed
adjudica-
a summary
tomer maintained that
so, 2)
him to do
the
compelling
precluded by
court order
is
the
of unre-
tion
existence
solved
of fact.6
proceeding
should have been
arbitration
undersigned
signed may
Upon application
party,
of a
not
"A.
the court
elect. If the
does
by registered
such
ad-
shall
award if:
make
election
mail
vacate an
you
your
corruption,
procured by
main office within five
dressed
"1.
was
The award
(5) days
receipt
you
means;
illegal
aftеr
of notification from
fraud or other
election,
requesting
then the under-
such
partiality by
"2.
was evident
an arbi-
There
you to make such election in
authorize
corruption
appointed
a neutral
trator
as
or
Any
undersigned.
of
behalf
the
arbitration
preju-
arbitrators or
of the
misconduct
at least
arbi-
hereunder shall be before
dicing
rights
any party;
the
of
arbitrators,
trators and
award
the
or
the
of
of
powers;
“3.
exceeded their
The arbitrators
them,
final,
judg-
shall be
of
postрone
“4.
refused
the
The arbitrators
may
upon
rendered
entered
ment
the award
hearing upon
being
sufficient
shown
cause
federal, having jurisdic-
state or
hear
therefor or refused to
evidence material
added.)
(Emphasis
tion."
controversy
the
or otherwise so conducted
contrary
hearing,
requirements
to the
of
the
provide:
2. The terms of 15 O.S.1981
act,
substantially
prejudice
this
the
as
application
party
agreement,
“Upon
of
party;
award,
an
unless with-
the court shall confirm
"5.
was no arbitration
There
grounds
imposed
in the time limits
herein
are
adversely
the
not
determined in
issue was
modifying
correcting
urged
vacating
for
proceedings
Section
O.S.1981
3 [15
award,
pro-
court
the
in which case the
shall
partic-
the
not
this act and
did
803]
in Sections 12 and 13 of this
ceed
ipate
hearing
rais-
arbitration
without
in the
added.)
(Emphasis
act.”
ing
objection.
was
it could
"B. The fact that relief
such that
8, Okl.
are:
The terms
Art.
granted by
of law
not or
not be
a court
would
contract, exprеss
“Any provision
or im-
aof
ground
vacating
equity
for
or re-
is not
any person, by
plied,
made
which
fusing
confirm the award.
Constitution
benefits application
"C.
under this section
An
waived,
(Emphasis
and void.”
shall be null
(90) days
delivery
ninety
made
after
within
added.)
applicant.
copy
award to
If
corruption,
predicated upon
or other
fraud
803(B) authorize
The terms of 15 O.S.1981
means,
illegal
be made
shall
stay, under
the district court to
tions,
certain condi-
(90) days
grounds
ninety
after
such
within
proceeding.
an arbitration
This subsec-
should have
known.
known or
tion
stay
may
an
application,
the court
"B. On
application to
denied and
“E. If the
vacate is
proceeding
or threat-
arbitration
commenced
modify
or correct the award
no motion to
is no
ened on a
that there
valid
pending,
the award.”
the court
confirm
Such an issue shall be
ment
summarily
arbitrate.
issue is resolved in
tried.
If the
6.According
response to the
the customer’s
moving
party,
favor
summary judgment,
factu-
quest
broker’s
proceeding.
рermanent stay of such
order a
remained unresolved
al issues which had
oppos-
the issue
in favor
is resolved
preclusive
any summary adjudication
hence
ing party,
shall order the
the court
sufficiently noti-
were:
whether
(Emphasis
proceed to arbitration."
participate in
of his refusal to
fied
broker
process,
custom-
whether the
prescribe
5. The terms of 15 O.S.1981
personal delivery
of a letter to the
er’s
grounds upon
arbitration award
process
participatiоn in
perti-
tors constitutes
3)
subsection
be vacated. This
"requested
assert-
customer
whether the
nent
(the
because
Uniform Arbi-
tractual
terms
he
While Oklahoma
Act)
invoked
tration
challenge
enforceability
failed to
below
process
converting the award into a
provision.
With
choice-of-law
judgment,
upon
relied
both
position
agree.8
we
broker’s
*3
support
respective
of their
York law
petition
Because neither the
nor
an-
Indeed,
positions.
Agree-
the Customer
swer
a
over the valid-
tenders
provision
a
ment does contain choice-of-law
law,10
ity of the
choice of
we
contractual
which states that “this
and its
[contract]
summary judgment
treat the
motion as a
governed by
enforcement shall be
the laws
failure
plea
judgment
for
on customer’s
judg-
York.”
the State of New
After
legal
a
broker,
state
defense.11
customer
appeals.
ment to the
attempt
escape
made no
below
bind-
relief is
on
Corrective
but
sin-
ing
New
priоr
effect
his
assent to
York
gle
both the
contention—that
choice-of-law
have,
application.
law’s
He could
but did
provision as well as the arbitration clause
not,
analysis
any
for
call
under Art.
itself are void
Okl.
supportive
facts
choice-of-law
chal-
urges
reject
Const.7 The broker
that we
(Second)
lenge
the customer’s call to invalidate the con-
under the Restatement
Con-
prior
hearing
the arbitration
to a
”...
letter ... refused
ed
his
...
[customer]
has not to
the ...
this date
Submission
trial under Oklahoma
Agreement
approval
submitted to him for his
germane
We note that none of these issues
signature.
statutory grounds
vacating
any of the
refusing
"...
to submit to [arbitration] ...
(see
812(A),
arbitration award
15 O.S.1981 §
made clear that
at all times
be-
[customer]
that,
event,
supra
custom-
note
allegations
having
cause of
of his account
er did not seek modification or correction of the
he believed the
churned ...
matter
meaning
within the
O.S.
broker’s award
of 15
adjudicated by
should be
a Court of record.
812(E), supra
note 5.
objec-
"...
... over the
[broker]
[customer’s]
using
procedures
...
tions
and without
supra
7.
note 3.
See
outlined in 15 O.S.1981
obtained the
invalid award....
8. We need not address the broker's alternative
alleges
"...
further
as an affirma-
[customer]
argument that the invalidation of the arbitration
tive
that under Oklahoma law
defense
clauses,
even
and choice-of-law
if measured
arbitration clause in the customer’s
the strictures of Oklahoma
would in
implicit
ment is an
waiver of his constitution-
consequence,
event be of no
because the Federal
al
trial and is thus unenforcea-
seq.] pre-empts
et
Act U.S.C.
ble.
[9
Arbitration
alleges
”...
...
in this
further
[customer]
all state law. See
connection Moses H.
Const.,
Mercury
arbitrators refused to dismiss the arbitration
Hosp. v.
460 U.S.
Cone Memorial
proceedings
927, 941,
and refer the
(1983);
reme-
103 S.Ct.
L.Ed.2d 765
provided by
though
dies
even
...
[notice
Byrd,
Reynolds, Inc. v.
U.S.
given]
would not submit
that he
1238, 1242,
219-221, 105 S.Ct.
tiation, matter, subject and performance and SUMMERS, “domicil, residence, JJ., ALMA along parties’ the WILSON- with concur. nationality, place incorporation place of (Second) significant relationship the transaction text more
12. The full
of the Restatement
(Second)
parties.
of Laws
states:
Conflict
and to
Restatement
the
“(1)
by
parties
Laws
note 14.
of
Conflict of
The law the state chosen
the
infra
rights
govern their
and duties
contractual
particular
applied
onе
will be
if the
issue is
(Second)
Conflict of Laws
Restatement
parties
by
the
have resolved
an
which
explicit
could
§ 188 states:
agreement
in their
directed
“(1)
parties
rights
with
and duties of the
to that issue.
respect
an issue in
are determined
contract
"(2)
by
parties
law
chosen
the state
the
of
which,
by
with
law of the
the local
state
their contractual
and duties
issue,
significant
respect
that
has the most
applied,
particular
be
even
the
issue is
will
parties
relationship to the transaction and the
parties
the
not have
one which
could
resolved
principles
stated in
under the
"(2)
by
explicit provision
their
an
choice
absence
an
In the
issue,
of
to that
unless
of
effective
directed
(see
187),
the contacts
the
"(a)
no
re-
the chosen state has
substantial
princi-
applying the
be
account in
taken into
lationship
the
transaction
applicable
ples
6 to determine the law
is no
reasonable basis for the
of
and there
other
сhoice,
parties’
an issue include:
"(b) application
“(a)
the law
the chosen
contracting,
place
the
of
of
of
contrary
poli-
be
state would
"(b)
negotiation
place
the
the
fundamental
of
of
materially greater
cy
has a
a state which
"(c)
performance,
place
the
of
of
the
state in
determi-
interest than the chosen
"(d)
subject
the
the
matter
the location
which,
particular
issue and
un-
nation of
contract, and
rule of
would be
state
der the
domicil,
residence, nationality,
"(e)
applicable law in the absence of
incorporation
place
effective
place
business of
parties.
choice
"(3)
parties.
contrary
indication of
absence
according
are to be evaluated
“These contacts
intention,
the reference is to
local law
respect
importance
relative
their
(Emphasis
add-
the state of
chosen
particular
the
"(3)
issue.
ed.)
negotiаting
contract
place of
Validity
generally
and effect of
Annot.:
See also
performance
place
are in the same
stipulation
effect that it shall be
in contract to
usually
be
law of
state will
the local
particular state
governed
law of
which
except
applied,
as otherwise
place
place
is made nor
where contract
neither
(Emphasis
and 203.”
§§ 189-199
performed,
16 A.L.R.4& 967.
it is to
where
ap-
complain on
does the customer
15. Neithеr
proof
tendered
customer should have
13. The
improp-
summary judgment
peal
that
materially
support
the factum of Oklahoma’s
re-
erly given
of fact
material
because
greater
than that of
interest in the
main unresolved.
Oklahoma's
York and the facts
New
KAUGER, JJ.,
effect of the
has chosen net to confront
concur
DOOLIN
8 on such
Okla.
specially.
essence,
it
ments.
SIMMS, JJ., concur
LAVENDER and
provision of a contract
consti-
in result.
to be waived
tutional benefits
KAUGER,
whom
Justice with
null and void.
DOOLIN, J., joins сoncurring specially.
Nevertheless,
the con-
concern about
stitutionality of arbitration
Oklahoma
A.
misplaced
following reasons:
applies
I concur that New York law
Statutory and common law
exist
agreement.
had the
the arbitration
Even
co-extensively;2
The common law of
inapplicable,
found
York
statehood,
England, as it existed at
allowed
law could not be used to defeat
Oklahoma
arbitration,
incorporated
into
and it was
arbitration because the Federal Arbitration
law;3
forbidding
Instead of
ar-
Oklahoma
Act,
(1982), pre-empts
1-14
U.S.C. §§
bitration,
the drafters
Oklahoma
purpose
state law when
conflicts
separate
embraced it
Constitution
*5
of the Act.1
5,
46;
6,
21;
articles: art.
art.
and art.
§
§
3)
9,
42;4
dynamic
“The common law is
§
B.
from
growing thing,
and its rules arise
so,
application
changing
reason to the
public
Even
interest has
society”;5
A
squarely
a contract
condition of
collective bar-
tendered —is
commodities,
gaining agreement
forms a new cоmmon
purchase
which con-
workplace,
law of the
and the
disputes
tains an
to submit
law —the
Const,
2,
arbitration,
“any law
unconstitutional?
Okla.
art.
156 forbids
§
Deacon,
apply
Wimberly
F.2d
such rules.
v.
1. Securities Indus. Ass'n v.
cert,
—
447,
1114,
denied,
561,
(1st Cir.1989),
144 P.2d
U.S.
Okla.
2559,
-,
110 S.Ct.
Court that one could be
deprived if, of the
unknowingly, person had executed a purported
document which to exact a waiv- circumstances,
er.17 Under those is avoidable. jury
If we construe 591 to mean that a may only a contract case be waived consent,
by filed written oral consent
court, trial, or failure to at the consent, (3) jury may By open fourths of the render a verdict. A oral entered in jury may be waived in a criminal cause the minutes or docket. parties expressed open consent of both (4) By failing jury to announce that a is re- the defendant and the defendant’s quired, at time the cause is set first counsel. In a civil cause a trial, parties expressed waived the consent of the clerk, (5) By failing deposit statute_” prescribed by judge, advance fees ...” (West Supp.1989)
16.Cal.Civ.Proc.Codes See, Gabrielson, Lawrence v. & Walzer pertinent part: (1989); Cal.App.3d Cal.Rptr. Ra- "(a) by jury may Trial be waived the sever- Court, Cal.App.3d Superior mirez al to an issue of fact in Cal.Rptr. following ways: (1) By failing appear at the trial. Johnson, (Okla. (2) By Johnson v. written consent filed with clerk 1983). judge. the Restatement. notes infra prohibit judgment plead- to ings, on the motions and 14. proper judgment it is to seek matter —as pleadings The customer’s petition tenders no fact law—when the legal and the answer fails to raise defense. Judgments plеadings still used in on the ... "... advised ... Plaintiff [the customer] system federal-court autho- Liberato, and all members Arbitration Panel Summary rized in Hittner and Texas. prior Texas, separate purported Judgments Mary's on occasions 20 St. LJ. (1989); Fraser, Hearing agree that he Arbitration would not Under the The Petition Code, proceedings. Pleading to submit to the Arbitration 38 Okl.L.Rev. Application clear- of business.” of this test of Laws 187.12 choice-of-law flict avoided, might analysis ly have been had the calls for a with a view clause {a) invoked, sig- determining Restatement standard been which state has the most legal sys- state’s relationship chosen nificant poli- “contrary were to a fundamental tem did not seek transaction. customer materially greater the state with the cy” of resolution of this matter.15 trial court’s determining interest sum, timely chal- the customer did not (b) the of the latter state hand and laws response the “summa- lenge by proper — govern in of an effective would the absence ry judgment” efficacy of the motion —the law.13 choice of made New choice-of-law