*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- thereof, 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 broker 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 after 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 postpone “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, express “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. permanent 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 participation 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 prior 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. 84 L.Ed.2d 158 ” proceedings.... the arbitration (1985); Industry Securities Ass’n Cir.1989). (1st F.2d Cf. Volt Info. pleadings, 10. "Issues where a fact arise on the Trustees, Sciences v. Bd. 489 U.S. party, conclusion of law is maintained one 1255-1256, 103 L.Ed.2d 488 S.Ct. and controverted the other. There are two First, law; Second, (Empha- kinds. of fact.” 9. the customer’s nor his In neither answer sis 12 O.S.1981 validity answer is the of the choice-of- amended challenged; allega- provision none of the Although 4(/), Rules for Rule District tions is directed to factors contem- Courts, ' appears O.S.Supp.1986, App., Ch. plated by *4 the As for whether Oklahoma controlling York over all controversies law controversy have this governed law would arising this contract. He thus cannot choice of the absent an effective now law to test the validi- invoke Oklahoma relationship” significant test of the “most ty by the stan- of the arbitration clause (Second) Restatement Conflict of Laws law. dards of this State’s fundamental appears The factors applicable.14 JUDGMENT AFFIRMED. contemplates this the Restatement places nego- contracting, are the of section HARGRAVE, C.J., HODGES,

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 one 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 choice, 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.) negotiating 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. Neither 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 concurring 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 common 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. 109 L.Ed.2d 742 Const, 5, Okla. art. § 903, Obst, Co. v. S.W.2d 2. House Grain (Tex.App.1983). not, Legislature except shall as otherwise “The Constitution, pass any local in this provides: Title 12 O.S.1981 2§ authorizing: special or of, law, jurisdiction Regulating practice modified constitu- or or "The common law, judicial pro- statutory changing decisions the rules of evidence in tional and courts, justices people, ceedings inquiry or before the and the condition and wants of the commissioners, sheriffs, general peace, remain in force in aid of the of the tors, tribunals, Oklahoma; providing or or but the rule of the or other statutes law, derogation changing the for the collection of that statutes in methods common construed, debts, thereof, judgments strictly shall not or the enforcement prescribing applicable any general sales of real statute of Okla- effect of be estate; homa; liberally but all such statutes shall be ...” Const, 6, provides: promote object.” their Okla. art. 21§ construed to Legislature provides: “The shall create a Board of Arbi- Title 25 O.S.1981 29§ law, Department in the rule common that statutes in tration and Conciliation "The derogation strued, strictly to be con- Labor and the Commissioner of Labor shall thereof are of this chairman.” has no to the laws ex-officio Const, 9, liberally provides: art. 42§ which are to be construed Okla. granted objects promote "Every license issued or charter a view to effect their and to foreign mining public corporation, justice.” service domestic, (1856), stipulation Avery, shall contain a Scott v. All E.R. the House corporation it will submit difference of Lords Court ruled that under common such may employees agreements la- principles to arbi- have with in reference to would enforce bor, arbitration, provided by disputes. as shall be trate future provi- framers of statutes and constitutional always presumed to be familiar sions must Restaurant, Inc., Brigance v. Velvet Dove statutory settled rules of and constitutional with construction, (Okla.1986). P.2d they may act on such rules construing expect courts to follow them in Const, scrupulously provisions, should 6. Okla. art. such and courts Act, contracts”; 5) is not tration 15 O.S.1981 there impairing obligation prohib- of the contract are dis- a denial of access to courts which is Only the terms Const, arise;7 puted right does the under the Okla. art. 6.12 ited to use the laws of Parties choose DeGeer, Long arbitration;8 7) another state which allow (Okla.1987), opinion concurring ex- impacted, If federal law is state law pressed concern that under art. Act,9 by the Federal Arbitration pre-empted express implied contractual waivers of Management Relations and the Labor right the fundamental trial Act;10 8) recognize Failure Evidently, those are to be unenforceable. protection equal in a denial of result expressed by appel- the same concerns the 14th amendment to the constitu- Obviously, here. for the reasons dis- lant States, and under the tion of the United above, bargained-for grievance arbi- cussed forbids the Okla. tration, pre-empted which is not federal concerning special laws enactment of per is not unconstitutional se. arbitrators, or under art. jurisdiction of questions presented are real whether prohibits granting of exclu- 51 which voluntary agreed to an intentional privileges to associa- sive relinquishment of a known tion, private corporation, or individual. they whether intended waive agreeing to precluded sub- by 12 by jury, permitted as is such concerning disputes mit to arbitration 803(A).14 59113 or 15 O.S.1981 O.S.1981 § under the Oklahoma grievance arbitration Al- unique. 8 is Oklahoma’s art. Act, 15 O.S.1981 Uniform Arbitration con- though no other state has an identical too, 801-818, then, the fire- so must *6 I, art. provision, California’s stitutional 11 51-101 fighters police, O.S.1981 §§ helpful. provides jury that a trial 16 is It 51-113;11 grievance Because arbi- § to only in may in a civil action be waived are reviewable tration awards compliance with the statute.15 California’s Arbi- courts under the Oklahoma Uniform Law", attainder, law, Lawyers’ Arbitration Letter post Common ex facto nor "No bill contracts, (1986). obligation impairing passed. No conviction shall shall ever be corruption or forfeiture of work a of blood provides: § Title 12 O.S.1981 591 13. Provided, not that this estate:' par- by jury may be waived "The trial ties, pecuniary penal- prohibit imposition arising on and with in actions ties.” actions, in the the court in other the assent of Lamb, Boyden par- N.E. following By 152 Mass. 7. v. the consent of the manner: party to ty appearing, when the other fails attorney. appear himself or at the trial Shear, Reynolds, - Okl. Inc. v. 8. consent, by attorney, person By in written -, (Okla.1990). 796 P.2d 296 consent, open By oral in filed with the clerk. court, journal.” on the entered (1982). Securities Indus. See U.S.C. 1-14 1, supra. v. see note Ass'n 803(A) provides: § 14. Title 15 O.S.1981 173(d) (1978) party application of a U.S.C. "A. On § 10. Title 29 act, agreement described in Section 2 of "(d) agreed adjustment by a method Final arbitrate, opposing party’s to refusal parties upon by declared to be the proceed parties to the court shall order grievance method for settlement desirable disputes arising opposing party denies If the with arbitration. application or inter- over the arbitrate, to collective-bargaining existence of the existing pretation of an summarily de- proceed the court shall agreement. directed to make The Service is order issue raised and shall avail- termination of the and mediation services its conciliation issue in grievance the court resolves the of such dis- arbitration if able in the settlement otherwise, moving party; exceptional only in putes as a last resort and favor of denied.” cases.” See, Independent Dist. No. v. School Maule I, art. 15. Cal. (Okla.1985). 714 P.2d 203-04 right Jacobson, and shall is an inviolate "Trial 100 N.J. 498 A.2d 12. Heffner all, also, cause three- but in a civil secured to "Arbitration and the negotiated Procedure is sim- Civil Code settlements could be obliterated 591, permits ilar to allegation Oklahoma’s waivers. on the based of the denial of the Under California the constitutional right jury to trial. This is an right by jury may trial to be waived result, may presume absurd and we not filing judge written consent Legislature that the intended enact an clerk; by consenting open absurdity.18 A reasonable construction of record; entering the consent into the applies pending that it actions. either, by failing trial, request jury a resolving Parties use other forms of a trial, pay jury or to advance controversy by the intentional waiver of right costs.16 the issue here Because is the right jury. trial, jury analysis the California a Article 8 was not intended nor comparable situation is useful. preclude should it be construed to Supreme California Court Madden tion. It would have much been easier for Hosp., v. Kaiser Found. 17 Cal.3d 131 the framers of the Oklahoma Constitution Cal.Rptr. 882, 1186-87 to have excluded arbitration once and for (1976), presupposes found that all, rather than to have included action, pending and that the statute relates They times. refused to do so. We way can waive the by judicial not do so fiat. Just as trial, jury demand a than rather parties has construed allow the been before a fact-finder. Section knowingly jury waive a trial without violat- purport prevent parties does not Constitution, ing the Oklahoma so should avoiding trial because their controver- to a commodities contract be sy not was submitted to a court of law knowingly intentionally allowed to always the first instance. It has un- by jury by agreeing waive the derstood that could avoid a to submit contractual controversies to arbi- trial, by settling underlying con- tration. troversy, by agreeing to a method of resolving the cause which need not invoke However, forum. the Madden *7 suggest did not

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 pleadings 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