Lindo v. NCL (Bahamas), Ltd.

his “ex the merits of Irrespective LINDO, Pineda Harold Leonel contention suf Cook’s argument,

haustion” Plaintiff-Appellant, previ In our defect. from a threshold fers determined we ous decision v. conclusory allegations “Mr. Cook’s courts do in the state LTD., racial discrimination (BAHAMAS), d.b.a. NCL 1443(1).” §of requirements not meet NCL, Defendant-Appellee. 10-2207, Cook, at 3 No. Order v. Garrett No. 10-10367. (10th 3, 2010), at R. reproduced Nov. Cir. prior aby This determination at 615. Appeals, States Court of United case” the “law of the us under

panel binds Eleventh Circuit. see, doctrine, Pryor, e.g., Ford (10th Cir.2008), from 1174, 1179 principle 29, 2011. Aug. depart us no reason gives

which Cook

here. for remov- stated no basis

Because Cook 1443(1), rights § his “civil exhaus-

al under trigger as the argument collapses

tion” Moreover, the district timely removal. in deter- abuse its discretion

court did not conclusory notwithstanding his

mining that 1443(1), attempted §

allegations under unreasonable. objectively

removal was during event identify another fails to

Cook notice of re- thirty days prior to his timely triggered have

moval that could According- basis.' on some other

removal with the district disagree cannot

ly, we of removal was that Cook’s notice

court objectively unreason- untimely and

both abuse of discretion discern no

able. We attorney’s fees court’s award of

the district and the Garrett Fargo costs to Wells

Group. court is judgment of the district

AFFIRMED. alleged trigger moval. for re- as the

reconsideration Parrish, Parrish, PA,

Philip Philip D. D. FL, Rudnikas, Miami, South Elias Benzo Stokes, Gonzalez, & Mia- Mark Lee Stokes mi, FL, Plaintiff-Appellant. Cohen, Mase, Sherry employed Rachel Curtis J. NCL Lindo to serve Mebane, Tejera, M. Scott P. Valentina crewmember Norwegian M/S Eversole, PA, Miami, FL, Mase Lara for Dawn, which flies a Bahamian flag of con- Defendanb-Appellee. ship typically venience.1 The departs from

ports in the United States and travels to locales, Bermuda, international such as Canada, and throughout venues the Carib- BARKETT, HULL and Before bean.

KRAVITCH, Judges. Circuit alleges Lindo in December acting while scope employ- of his HULL, Judge: Circuit ment on private NCL’s island the Baha- Plaintiff-Appellant Harold Leonel Pine- mas,2 injured he his back after he was (“Lindo”) appeals da Lindo the district transport heavy bags ordered to trash court’s enforcement of the arbitration ship. surgery He later underwent employment his contract injury. correct the (Bahamas) with Defendant-Appellee NCL (“NCL”). Ltd. Lindo sues NCL on a sin- A. Employment Lindo’s Contract gle count negligence, pursu- of Jones Act Lindo’s employment gov- § ant with NCL was to 46 U.S.C. 30104. He claims that (1) duty NCL breached its him erned supply bargaining agree- with collective place (“CBA”) safe to work. The district court ment negotiated by NCL and the granted compel NCL’s motion to arbitra- Union, Norwegian Seafarers’ tion and complaint. dismissed Lindo’s (the “Contract”), employment contract January Lindo executed in

Given the New York Convention and governing Supreme Court and Circuit Lindo’s provides Contract precedent, we must enforce the arbitration “[ejmployee employment and the relation- clause in Plaintiff employment Lindo’s con- ship established hereunder shall at all tract, at least at this initial arbitration- subject times be governed by to and enforcement stage. After review and oral provides that, CBA.” Lindo’s Contract also argument, we affirm the district court’s notwithstanding whether he is a union order compelling arbitration of Lindo’s member, he agrees “understands and negligence Jones Act claim. respect Employer’s with to the obligations general under maritime law in the event of I. FACTUAL BACKGROUND injury illness, of terms the CBA Plaintiff Lindo ais citizen and resident control Employee provided and the will be Nicaragua. of Defendant NCL is a Ber- benefits, with including wages, unearned muda corporation operates cruise maintenance, cure and medical care and ships, with principal place its of business in will be compensated in accordance with Miami, Florida. Spector Norwegian See said CBA.” Lindo’s Contract “acknowl- Ltd., 119, 126, Cruise Line edges that opportunity has had an he[ ] 162 L.Ed.2d 97 review said CBA.” (referring to “a corpora- NCL as Bermuda Paragraph tion with a principal place speci- of Lindo’s Contract business Florida”). Miami, fies that all Jones Act claims bewill re- flag 1. A ship's argument, convenience indicates the 2. At oral Lindo’s counsel stated his country registration. understanding private that NCL’s island was located in the Bahamas. shall applied law to be to the arbitration pursuant binding solved Recog- of the vessel.” flag Nations Convention the law of the state the United Foreign claim, Arbi- including nition and Enforcement Lin- any This entailed that (“the York New Convention” claim, tral Awards do’s Jones Act would be arbitrated Convention”): or “the (Lindo’s country of Nicaragua citizen- (the ... and all agrees Seaman law law the ship) Bahamian any way to or in relating ... vessel).3 claims flag state shipboard with the Seaman’s connected place challenge Lindo does not Company including with employment Rather, challenges arbitration. Lindo hav- personal injuries ... such as claims all Bahamian ing arbitration at because ... claims be re- shall Jones [and] law, statutory negli- negligence not U.S. exclusively by resolved ferred to and Act,4 gence under the Jones pursuant to the Unit- binding arbitration apply. on Recognition ed Nations Convention Arbitral Foreign Enforcement of History B. Procedural Awards.... requires signato- courts in

The Convention 2009, in Lindo filed suit Florida state private to interna- ry to effect give nations (1) He claims: court. asserted various recog- agreements and to tional arbitration Act to negligence, pursuant Jones entered in nize enforce arbitral awards and (2) (Count I); § failure U.S.C. to contracting states. See The United other and provide entire maintenance cure Recognition on and Nations Convention (Count II); (3) provide failure to treat and Awards, Foreign Arbitral Enforcement of (Count III); adequate medical cure 1958, 2517, 10, 21 U.S.T. June (Count IV); unseaworthiness and an provides 3. The CBA likewise U.N.T.S. disability unnumbered count for benefits by will be Act claims resolved Jones under the CBA. filed a motion to NCL pursuant arbitration to Con- binding dismiss and arbitration. compel vention. § NCL Pursuant to 9 U.S.C. also arbitration, Lindo’s place As to the District removed the action to place of the “[t]he Contract states that for the District Florida Southern country be the Seaman’s arbitration shall sought arbitration. Lindo compel to arbitration unavail- citizenship, unless complaint alleging a filed second amended in able The Convention that coun- negligence. single a count of Jones case, only in try, in stated that Nassau, Lindo’s related motion “NCL place said take arbitration shall law, has to date met its maintenance cure choice Lin- Bahamas.” As to the obligations.” “The provides, do’s substantive Contract employ- provides injured A seaman in the course 3. that the arbitra- The CBA further or, the American injury, tion will be administered ment dies from the if the seaman and that arbi- "[t]he Arbitration Association personal representative of the seaman to in this Article is exclusive tration referred law, may bring elect a civil action with mandatory. proceed- or Lawsuits other right against by jury, the em- of trial ings any Union Seafarer between and/or regulat- ployer. the United States Laws of brought except en- may NCL not be to, injury ing recovery personal or death provision Agree- force the arbitration of this of, employee apply to an railway action enforce a decision of the Arbitra- ment or to under this section. tor.” § U.S.C. provides: 4. The Jones Act Each State Subsequently, opposed Contracting recognize Lindo NCL’s shall sought writing a remand to motion dismiss and under which argued court. that the arbi- parties state Lindo undertake to submit to arbi- was provision tration in his Contract void tration all or differences which have against public policy operated because it arisen or which arise between them prospective as a of his Jones Act waiver respect legal relationship, of a defined Alternatively, not, claim. Lindo contended whether contractual concerning should not provision the arbitration subject capable matter settlement economic hardship enforced due to the arbitration. Lindo would incur his because Contract 11(1) Convention, art. New York regarding was unclear extent to which (where Nicaragua Both Lindo is pay he must arbitration costs. (whose citizen) and the Bahamas law Lin-

The district Lindo’s motion Contract) court denied agreed do in his are also remand, granted NCL’s motion to com- signatories to the Convention. arbitration, pel Lindo’s sec- and dismissed provides FAA Section 201 of the ond amended complaint. See Lindo v. Convention shall enforced in U.S. (Bahamas) Ltd., 09-22926-CIV, NCL No. courts: Recogni “The Convention *4, 2009 WL U.S. Dist. Foreign tion and Enforcement Arbitral (S.D.Fla. LEXIS at *10 Dec. Awards of June shall be enforced (“A 2009); § see also 9 U.S.C. court United States courts accordance with having jurisdiction chapter may under this § chapter.” 201 (emphasis U.S.C. direct that be held in accor- added); see also Indus. Risk Insurers dance with agreement any place the GmbH, Gutehoffnungshutte M.A.N. 141 for, provided place therein whether that is (11th Cir.1998) (“As 1434, F.3d 1440 an States.”). within or without the United treaty Congress’ power exercise of the and timely appealed. Lindo law, as federal the Convention must be enforced to its according terms over all II. THE NEW YORK CONVENTION prior of (quotation inconsistent rules law.” A. Agree- Arbitration omitted)). Enforcement of marks The Court has ments Convention, of goal stated the “[t]he and principal purpose underlying the We start with New York the Convention American and 1958, adoption implementation referenced Lindo’s Contract. In of it, the was to the encourage recognition United Economic and Nations Social adopted Council enforcement the Convention on the of commercial arbitration Recognition agreements Foreign Enforcement international contracts and Awards, Arbitral to commonly unify by more known the agree standards 1970, the New York Convention. the ments to are arbitrate observed and arbi United States to treaty, acceded which tral awards are enforced in the signatory was subsequently implemented by Chapter Co., countries.” Scherk Alberto-Culver (“FAA”), 2 of the Federal Arbitration 520 n. 2457 § (1974). U.S.C. 201 seq. 9 et n. L.Ed.2d requires The Convention contracting B. Two Stages of Enforcement states, States, such as recog- the United to Convention, agreements implement Chapter nize written To arbitration con- cerning subject FAA capable provides matter two causes of settle- action by ment party arbitration: federal seeking court for competent authority where agreements covered “the arbitration enforce compel sought”); action is recognition Convention: enforcement the terms of in accord with § (providing “[t]he see also 9 U.S.C. § at a 9 U.S.C. agreement, it confirm award unless court shall an arbi- an action to stage, later grounds for refusal or confirm finds one of to an arbitra- pursuant made aivard tral recognition enforcement of or deferral § 207. See Cza- 9 U.S.C. agreement, tion Conven- specified award in the said rina, Syndicate, v. W.F. L.L.C. Poe tion”). seven defenses One Article V’s (11th Cir.2004). 1286, 1290-91 F.3d defense, which states: “public policy” is defenses The Convention contains of an arbi- Recognition enforcement stages to the correspond separate two may if the tral award also be refused above. Article mentioned country competent authority defense, the “null and void” II contains is recognition where and enforcement § 206—is directed which—like 9 U.S.C. that: sought finds considering an action or motion courts parties arbitration”: “refer (b) recognition The or enforcement State, when Contracting of a The court contrary pub- the award would be to the in respect action a matter of an seized country. lic of that made an parties have of which V(2). of this meaning Convention, within art. New York After shall, article, at the of one of the request arbitration, a court refuse to enforce arbitration, parties parties, contrary award if is an arbitral the award refer it that the said unless country. to the finds void, incapa- inoperative null and defending the enforce- party against being performed. ble of the bur- ment of an arbitral award bears 11(3) Convention, art. New York Imperial Ethiopian Gov’tv. proof. den of II at the initial applies Corp., Baruch-Foster Bau- stage. See arbitration-enforcement Cir.1976).5 (5th Cruises, 1289, 1301 tista v. Star II no ex- Importantly, Article contains (11th Cir.2005) (stating -Conven- “[t]he that implicit public policy or defense plicit an agree- that enforce requires tion courts stage. the initial arbitration-enforcement arbitrate unless the ment to Convention, art. II. Mean- New York See void, inoperative incapable of ‘null and or defense, by while, Article V’s ” New York being performed’ (quoting terms, applies only at the award-en- its 11(3))). Convention, art. V(2) (stating stage. See id. art. forcement Convention, V of an “[Recognition and enforcement when hand, enumerates seven defenses the other refused”). may award also be arbitral § directed that —like 9 U.S.C. 207—are parties agree that the Convention Both considering recognize courts whether Applying the to Lindo’s Contract. applies an arbitral Article V enforce award. Convention, recognized the district court stage. the award-enforcement applies at arbi- and enforced Lindo’s Convention, (listing art. York V See New in dispute Bahamian law trate his “[Recognition where seven instances country citizenship. appeal, of his On refused” of the award Prichard, prior to City Fifth handed down the former Circuit Bonner v. 5. (en banc), (11th Cir.1981) we September 1981. close of business on precedent binding decisions of adopted as till agree- provided that his arbitration The contract The Bremen argues Lindo “ law, ‘[a]ny dispute arising ment, [between that by selecting Bahamian effec- must be before parties] treated the Lon- statutory tively his U.S. claim eliminates ” don Court Justice.’ Act and is unenforceable under the Jones Supreme The Court recognized that, under the Lindo asserts Convention. English likely applied that would be despite agreement binding his him to do adjudicate the claim. id. at See 13 n. so, required he else- cannot be arbitrate (stating at 1915 n. S.Ct. “while the he can where under the Convention unless specifically provide contract here did not pursue a U.S. claim under the England that the substantive law of should Act. Jones it is applied, general English rule assumed, parties courts are ab- III. OF CASE LAW REVIEW contrary indication, designat- sent to have The Supreme Court and this Circuit forum with that it ed the the view should multiple enforcing have cases fo- decided law”). apply its own Court The remarked rum-selection and choice-of-law clauses in that “the forum also an clause was effort (1) require suit arbitra- contracts or certainty to obtain the applicable as to forum, applica- tion in a non-American Accordingly, substantive law.” Id. law, tion of non-American combi- forum-selection clause in The Bremen con- cases, nation thereof. Those discussed implications tained choice-of-law as well— below, provide applicable guidelines law, English, not American apply. would choice reviewing the clauses in Lindo’s Supreme Court announced a strong arbitration agreement. presumption enforcing favor of such fo- clauses, despite possibili- rum-selection Zapata A. v. Bremen Co. MIS Off-Shore ty markedly result different (U.S. 1972) if the proceeded be obtained case in En- strictly Although not an arbitration glish opposed courts as to American Bremen v. Za- Court’s M/S courts.6 Co., pata S.Ct. Off-Shore (U.S. B. Scherk Co. AlbeHo-Culver (1972) (“The 1907, 32 L.Ed.2d 513 Bre- 1971) men”), held that forum-selection clauses “prima are valid.” facie Id. at later, Only years few the Supreme at 1913. The Court disclaimed principles Scherk extended these “parochial concept disputes that all arbitration, reasoning agree- “[a]n must be resolved under our laws and specified ment to arbitrate before a tribu- our courts” cautioned that the United is, effect, in nal a specialized kind of fo- States have “cannot trade and commerce posits only rum-selection clause that in world markets international waters the of suit the procedure situs but also to terms, exclusively governed by on our our in resolving dispute.” be used the 417 laws, 9, 519, in and resolved our Id. at courts.” at 94 at 2457. U.S. S.Ct. Scherk also 92 S.Ct. at 1912-13. that recognized statutory U.S. claims are Bremen, 8, Compare 6. (noting 407 8 n. 92 at U.S. at 92 S.Ct. 1912 n. the Fifth 9 Cir- (referencing "undisput- suggestion enforcing exculpato- S.Ct. at 1912 n. 8 an cuit’s that the English ed” ry improper affidavit of British solicitor that clauses be in American exculpating doing deny courts the would find clauses because "would [the courts so " liability 'prima plaintiff] German defendant from fa- American relief to which it was 'enti- ”), 9, ”). cie valid and enforceable’ with at 8 n. id. tled’

1265 sional consistent with the decision to arbitral resolution —even amenable 15, containing anti-waiver Id. statutory today.” claims we reach at 520 n. S.Ct. as securities law provisions, such the U.S. n. at 2457 15. requires a secu- any that

barring provision Corp. , C. Motors v. Soler Mitsubishi compliance with rity buyer to waive Chrysler-Plymouth, (U.S. 1985) Inc. Id. at Exchange Act of 1934. Securities 513, at 2454. 94 S.Ct. In Corp. Mitsubishi Motors Soler Inc., 614, Chrysler-Plymouth, in and circuit courts

Both district (1985), 87 L.Ed.2d 444 compel had to arbitration. S.Ct. Scherk refused Reversing, at Supreme again Id. 94 S.Ct. 2452-53. Court enforced an arbitra at parties’ that the Supreme agreement tion clause in a sales time Court.held —this for in Paris agreement, calling arbitration Japan for calling arbitration law, “respected applying Illinois should the Japan rules of Commercial Arbitration 519-20, Id. at 94 S.Ct. at enforced.” though litigant Association—even raised The Court stated that contrac- “[a] 2457. statutory causes of action. specifying tual advance the provision In a Japanese car manufac- litigated disputes forum in which shall be (Mitsubishi Corporation) turer Motors en- ... applied is[ ] and the into agreement tered a sales with Soler indispensable precondition almost Inc., Chrysler-Plymouth, a Puerto Rican pre- orderliness achievement dealership, sale of Mitsubishi-man- dictability international essential 616-17, products. at ufactured Id. Id. at business transaction.” S.Ct. at S.Ct. 3348-49. Mitsubishi sued Soler at The Scherk sought for payments compel due and rejected insistence majority the dissent’s agree- in the provided sales that “American standards of fairness” 618-19, ment. Id. at 3349-50. controversy, commenting govern must alia, counterclaimed, alleging, Soler inter judicial obstinacy “demeans the such had that Mitsubishi violated the Sherman justice elsewhere standards 619-20, Id. Act. 105 S.Ct. world, unnecessarily prima- exalts agree- holding the arbitration laws cy of United States law over the enforceable, Supreme ment was Court n. other countries.” Id. at 517 strong pre- Mitsubishi stressed omitted). n. (quotation at 2456 marks sumption favoring the enforcement of arbi- declaring that the arbitration After tration clauses and remarked that “[t]here “respected and by clause must be enforced depart guide- is no reason to from these courts,” the federal Court’s party lines where a bound an arbitra- 1974 Scherk decision commented its tion claims raises founded on garnered holding support light further rights.” Id. 105 S.Ct. at of the United States’ 1970 accession 3354. The concluded treaty’s York and the New Convention a party is bound its to arbi- the FAA. subsequent implementation by statutory claims unless trate U.S. Con- n. S.Ct. at 2457 & n. at 519-20 & gress precluded has arbitration as to that Although declining 15. to decide whether subject matter: the of its required New York Convention congressional policy Just as it is the of own force the enforcement the arbitra- clause, manifested in the Federal Arbitration Supreme proclaimed tion the Court requires liberally that to con- “provide the FAA courts that the Convention and agree- persuasive congres- scope of of arbitration strongly evidence strue Act, by covered it ments that is the ed States’ accession to the Convention expressed congressional intention by subject-matter recognizing exceptions some other statute on which the courts Congress expressly where has not di- rely to identify category must of rected the courts to do so. to which to agreements claims as arbi- added). Id. (emphasis be held trate will unenforceable.... The rejected Mitsubishi Court the argu- arbitrate, made the to Having bargain ment that Sherman Act antitrust claims should to party be held it unless were for unsuitable arbitration. The Su- Congress has evinced an intention itself preme Court adverted to its decision in preclude judicial to a waiver reme- of Scherk, concluding that of “concerns inter- the statutory rights dies at issue. for respect national comity, capacities for the meantime, in the Nothing, prevents a of foreign tribunals, and transnational party from excluding statutory claims sensitivity to the need of the international from scope of an to arbi- commercial system predictability in the trate. disputes resolution require of that we en- 627-28, 105 Id. at S.Ct. at (empha 3354-55 force parties’ agreement, even assum- added). sis ing that contrary result would beforth- 11(1) This consistent with Article of coming in a domestic context.” Id. at Convention, that states “[e]ach added). (emphasis S.Ct. at 3355 The Contracting recognize State shall Mitsubishi Court observed that “The Bre- agreement in writing under which par- men and strong pre- Scherk establish a ties undertake submit to arbitration all sumption in of favor enforcement of freely or any differences ... concerning a sub- negotiated contractual ject pro- choice-of-forum capable matter by settlement arbi- visions,” Convention, 11(1) tration.” New York that this presumption art. is “rein- The Mitsubishi Court emphatic forced federal 11(1) agreed “contemplates ex- resolution,” favor of dispute arbitral ceptions arbitrability grounded in do- that this policy “applies federal with spe- mestic law.” 473 at 639 n. 105 cial force in the field of international com- words, S.Ct. at n. 21. In other courts merce.” Id. at examine, may at the arbitration-enforce- Because meaning of dicta in Mitsu- ment stage, whether a type bishi's 19 is hotly disputed by footnote so claim cannot be submitted arbitration. parties, we discuss it in detail. stressed, Supreme The however, footnote Court com- subject-matter exception poli- is a States, mented that the acting United as cy to be by Congress, decision made not curiae, amicus raised possibility courts: Japanese arbitral panel could read the utility promot- Convention choice-of-law provision “wholly ... dis- ing process international com- place law,” just American as to the mercial arbitration depends upon the interpretation of the contract terms but willingness national courts to let go also apply. where it would otherwise they matters normally would think 637 n. 105 S.Ct. at 3359 n. 19. Doubtless, Congress their own. Although provided the arbitration clause specify categories of claims it wishes to governed agreement, Swiss law Mitsu- reserve for decision our own courts bishi argument without conceded oral contravening this Nation’s obli- gations under the American apply Convention. But law would we the antitrust decline spirit to subvert the of the Unit- claims in arbitration. Id. The

1267 specula the specu- agreements to tion on basis it “no occasion had Court stated of (citations emphasis add tion” omitted stage at this the on this matter late ed)). to seeks en- when Mitsubishi proceedings, arbitrate, not to agreement

force the Notably, is consistent with Mitsubishi Supreme Id. The an award.” enforce public policy the that fact V no to “consid- there was need Court added applies at the award-enforcement defense an arbitral tribunal’s now the effect of er stage, not the initial arbitration-enforce- statutory cognizance take the failure to foot- stage; Immediately following ment capacity on the claimant’s cause of action 19, discussed note the text of Mitsubishi suit in federal court.” Id. to reinitiate arbi- how the Court’s enforcement the added). (emphasis not federal courts tration clause did divest arbitrators’ authority of their to review the continuing the In dicta footnote at 105 ultimate decision. “merely that in Supreme note[d]” At award-enforce- S.Ct. at 3359-60. the the and choice- the event “choice-of-forum retain the abili- stage, ment federal courts operated tandem as a of-law clauses ty proceed- the to review whether arbitral party’s right prospective waiver ing litigant’s sufficient to a paid heed for antitrust vi pursue remedies public policies underlying and the claims olations, have little hesitation in would we the arbitration “Having permitted them: against pub condemning the forward, go the national courts of Id. The Court’s policy.” lic opportunity States will have the United examples no provided footnote stage to ensure an im award-enforcement constituting clauses such types of legitimate in the enforce- interest And to prospective waiver. permissible has ad- ment of antitrust laws been date, never invali Supreme Court has Id. at 105 S.Ct. at 3359 dressed.” dated an arbitration (emphasis reasoning waiver” footnote “prospective Instead, compelled it has Additionally, the Mitsubishi Court ob- initial arbitration-enforcement of the York served that Article V New noting “prospective waiv stage, signatory to each Convention “reserves premature and should instead er” issue is country right to refuse enforcement of at the arbitral be resolved ‘recognition or en- an award where award-enforce y Seguros Re stage. ment See Vimar contrary award forcement would ” Sky Reefer, v. aseguros, S.A country.’ of that M/V 2329-30, 528, 540-41, 115 added) S.Ct. New York (quoting Con- (concluding, arbitra V(2)(b)). L.Ed.2d vention, allaying Further art. ruling stage, tion-enforcement that such review concerns “prospective question waiver” process, would occur too late given subsequent opportunity “premature” “the although Court stated that stage); for review award-enforcement efficacy process requires of the arbitral Pyett, Penn Plaza see also LLC the award-en- that substantive review at -, 1456, 1474, minimal, it would stage forcement remain (2009) (stating, at arbitration- to ascertain require inquiry L.Ed.2d 398 intrusive stage, cognizance that resolution the tribunal took actually of “feder decided question prospective of a waiver antitrust claims junc at 3360. ally protected rights civil .... at them.” Id. at words, arbitral award-enforce- particularly inappropriate in other at the ture would be if the stage, court can ascertain arbitra ment light of our hesitation invalidate recognized by governed arbitral tribunal the antitrust the Japanese law.” Id. at The Supreme gave claims. Court no indi- (quotation 115 S.Ct. at 2325 marks that an cation Article V anal- omitted). Supreme The Court acknowl ysis by applies its own terms when edged that the substantive law prospec —which “[rjecognition the and enforcement of an in tively applied Japanese the arbitration sought, arbitral award” York New Con- proceedings could reduce the defendant V(2) art. pri- vention be conducted —should shipping liability Panamanian carrier’s be stage. or the award-enforcement legal guarantees low the U.S. afforded to cargo American owner the Car Seguros y Reaseguros D. Vimar v. M/V (“COGSA”).7 riage by of Goods Sea Sky (U.S. 1995) Reefer 539-40, 115 Id. at S.Ct. 2329. here, Importantly for the issue Vimar Specifically, Japanese Hague Rules vest- this principle extended wait-and-see ed carriers with an additional defense Vimar, Mitsubishi even further. a based on the acts or omissions of hired purchased fruit distributor stevedores, statute, whereas the U.S. from shipped in a Morocco vessel owned COGSA, proper stowage rendered the by company a Panamanian and time-char- cargo nondelegable duty. a Echoing a Japanese tered to company. 515 U.S. at Mitsubishi, Court Vimar stated that 530, 115 S.Ct. at 2325. the fruit Because petitioner’s “[w]hatever merits of com- route, was cargo damaged en the U.S. parative reading Japa- of COGSA and its subrogated distributor and its marine car- counterpart, nese premature. its claim is go brought insurer suit in federal district At interlocutory stage it is not estab- ship court against the in rem and its Pana- lished apply what the arbitrators will manian owner personam, in while those petitioner’s petitioner claims or that will sought defendants to compel arbitration. protection receive diminished as a result.” 531-32, Id. at 115 S.Ct. at 2325. Id. at (emphasis Supreme The Court enforced arbi provision tration providing disputes that Mitsubishi, Unlike the foreign “shall defen- be referred to in Tokyo by Tokyo Maritime dants in no stipulation Arbitration Com Vimar offered that mission” and contract “shall be American law apply to the arbitra- COGSA, now codified as in foreign amended dle costs inconvenience of arbi- following "governs § note 46 U.S.C. necessarily liability” tration ... "lessen[ed] lading terms bills of issued ocean manner countenanced COGSA. The engaged foreign carriers trade.” Kawasaki nothing Court concluded that Regal-Beloit Kaisha Corp., Kisen Ltd. v. "lessening liability” language COGSA’s such U.S.-, 2433, 2440, 177 L.Ed.2d "prevents parties agreeing from to enforce " (2010). provides '[a]ny COGSA obligations particular [COGSA’s] forum.” clause, covenant, or contract Id. at Relying S.Ct. at 2327. on the carriage relieving ship or the carrier "contemporary principles of international liability damage from for loss or to or in comity practice” and commercial observed in goods, connection with lessening ... or Bremen, Scherk, The the Vi- liability such ... shall be null void and of mar "[i]t Court declared that would also be Vimar, no effect.'” 515 U.S. at keeping objects out of with the of the Conven- added) S.Ct. at 2326-27 COGSA). (quoting country interpret tion for the courts of this plaintiffs in Vimar contended disparage authority compe- COGSA to provision proscribed of COGSA en dispute tence of international forums for reso- foreign forcement arbitration clause. 537-38, lution.” Id. at 115 S.Ct. at 2328-29. matter, preliminary As a rejected plaintiffs’ argument

1269 Supreme these Court Together, Japan. in The Vimar proceedings tion the overarching scenarios where hypothesized propound several precedents Court conclude “that COGSA (1) arbitrators could a apply strong should themes: courts Japanese own force or that of its applies in favor of enforcement presumption that, apply under another law not so does (2) clauses; and choice con- lading, clause of the bill COGSA arbitrable, statutory claims are unless Nevertheless, specula- such trols.” Id. specifically legislated other Congress has juncture, immaterial the at this tions were wise; en clauses be choice-of-law reasoned, foreign since the Supreme Court law applied even if the substantive forced only to enforce the arbi- defendants “seek provides reduced potentially in arbitration court and the district agreement” tration (or defenses) than those remedies fewer the jurisdiction over case “retained law; if a even available under U.S. at award- opportunity the ‘will have the foreign says that law expressly contract legit- stage ensure that the Vimar, not as in courts should governs, enforcement of imate interest invalidate an arbitration at the ” 540, Id. at ... has been addressed.’ laws stage on the basis arbitration-enforcement Mitsubishi, (quoting 2329-30 at S.Ct. speculation about what the arbitrator 3359). at Even at 105 S.Ct. do, opportunity as will be later will there lading specified that the though bill of to review arbitral award. by Japa- governed contract “shall law,” it Court concluded nese Lloyd’s, Lipcon at E. v. Underwriters judgment on the to reserve was “correct (11th 1998) Cir. London “must be question,” since this choice-of-law arbitra- in the first instance decided Following Supreme precedent, as (quota- at 115 S.Ct. tor.” Id. must, both this Court enforced choice- we omitted) Mitsubishi, 473 (citing tion marks in Lip and forum-selection clauses of-law 19). n. n. U.S. at 637 London, Lloyd’s, con Underwriters at (11th Cir.1998), again, despite Citing Mitsubishi 148 F.3d 1285 language to the qualifier Court added applied law in the likelihood that the to be footnote 19. Vimar stated Mitsubishi’s the Ameri foreign tribunal would accord agreement could be that an arbitration than plaintiffs can fewer remedies “ poli- ... against public ‘condemned] law. available under U.S. ” “ if ‘choice-of-forumand choice-of- cy’ was Lipcon is not an arbitration pro- in tandem as a operated law clauses subject linking of to the Convention’s right pursue party’s of a spective waiver Article V’s defense to public ” if “no there were statutory remedies’ stage. Aside arbitral award-enforcement Id. subsequent opportunity review.” timing of when the Con from feature added) 115 S.Ct. at 2330 raised, is policy defense vention’s n. U.S. at 637 (quoting 19 in Lipcon highly relevant to footnote 19). n. “the Dis- at 3359 Since S.Ct. Mitsubishi. jurisdiction, mere trict Court has retained American inves- Lipcon, plaintiff foreign arbitrators speculation from massive financial losses tors incurred which, might Japanese depend- apply underwriting transactions. certain COGSA, ing proper on the construction case from efforts Lipcon arose legal obli- might respondents’ reduce London, in- Lloyd’s large British not in and of lessen gations, does itself market, American in- to recruit surance Id. at liability under COGSA....” ar- the contractual vestors. Id. Under at 2330. rangement, plaintiffs’ argument the American investors would American “finds provide underwriting capital exchange strong support plain language right participate Lloyd’s for the un- provisions, facially anti-waiver admit derwriting agencies. Id. Like The Bre- no exceptions,” this Court nonetheless men, Lipcon agreements contained “precedent stated that consider- choice-of-law and forum-selection clauses compel us to ations conclude that Bre- “the providing England that courts of for evaluating men’s framework choice jurisdiction shall have exclusive to settle agreements clauses in international gov- “rights any dispute” and the and obli- Lipcon erns this case.” Id. at 1292. The parties gations gov- of ... shall Court summarized the “Bremen as test” by with erned and construed accordance calling for of the enforcement forum-selec- add- England.” laws Id. of unless: tion clauses omitted). quotation Alleg- ed and marks (1) their formation was induced fraud English Lloyd’s ing that defendant (2) overreaching; plaintiff or effec- information, concealed the American inves- tively deprived day would be of its brought statutory tors claims in dis- court because or inconvenience under, alia, trict court inter the Securities forum; unfairness of the chosen Exchange Act of 1933 and the Securities fundamental unfairness of the chosen (collectively, Act of 1934 the “U.S. Securi- deprive law would plaintiff of a rem- Acts”). ties Id. 1288-89. edy; or provi- enforcement of such contentions, Among other the American a strong public sions would contravene plaintiffs argued that Mitsubishi’s foot- policy. note indicated the Court’s As to Id. the first factor—“fraud “unwillingness permit provisions choice overreaching” or concluded that —we to eliminate United States reme- plaintiffs American not adequately had dies.” Id. at 1293. This in Lipcon pled fraud. Id. rejected argument affirmed As to the latter three factors of “the district court’s enforcement of the English or inconvenience unfairness the chosen clauses, forum and law English concluding forum,” “the fundamental unfairness that the forum-selection and choice-of-law law,” and the chosen a “satisfy “contraven[tion] [of] clauses scrutiny for fundamental strong public fairness and policy,” Lipcon do contravene this Court in poli- cy.” Id. at 1287. English examined whether the remedies inadequate, given English were law Similar to the Court’s Scherk analogues contained no direct to the U.S. decision, Lipcon considered whether the Securities Acts. We recounted numerous provisions anti-waiver of U.S. securities which, of English facets securities law any provision law—which barred requiring contended, plaintiffs American provided security buyer compliance to waive with compared for inferior remedies the U.S. Securities to their Acts8—voided the choice-of-law and counterparts. forum-selection clauses U.S. Id. at 1297-98. We acknowledging issue. While confessed was there “little doubt that ‘the provides, condition, “Any provides, 8. The “Any Securities of 1933 stipulation, or condition, stipulation, provision binding or provision binding any person to com- waive person any acquiring any security to waive any pliance provision chapter with of this or compliance any provision with sub- thereunder, any regulation rule or ofor chapter regulations or of the rules and self-regulatory organization, rule of a shall be Commission § shall void.” U.S.C. 77n. 78cc(a). § void.” U.S.C. Similarly, Exchange the Securities Act of added). Accordingly, this Court pro- phasis laws would securities United States variety plaintiffs greater were with held American [appellants] vide of success greater chance must hon- the choice clauses and defendants bound causation re- lighter scienter by bringing due to their claims in bargain their ” Roby (quoting at 1297 Id. quirements.’ courts, English law. English Lloyd’s, Corporation (11th v. Star Cruises Cir. F. Bautista (2d Cir.1993)). 2005) English contained concluding Cruises, v. Star a chal- Next comes Bautista remedies withstand “adequate” test, compelled Bremen this Court arbitration of lenge under the where this Court declared, not invalidate choice “We will in the negligence Philip Act claims Jones the simply ... because remedies rejected plaintiff clauses[ ] the seamen’s pines contractually in chosen forum available arguments provision the arbitration in than those available are less 396 F.3d at 1302- was “unconscionable.” favorable (em- Id. of the United States.” courts reaching holding, this Bautista fol 03. added). Rather, are choice clauses phasis weight clear of the lowed the the remedies “only when unenforceable precedents and our Circuit’s dis Court’s chosen forum are so inade- available cussed above. be quate that funda- of a explosion Bautista involved Id. mentally unfair.”9 ship’s cruise steam boiler while the vessel Lastly, Lipcon we were mindful at in Miami. Id. 1292. Four was docked “prospective waiv- footnote Mitsubishi’s injured personal crewmembers and the (citing Mit- er” id. at 1298 language. See crewmem- representatives six deceased subishi, at 637 n. citizens, Filipino id. at 1294 n. 7 bers—all 19). SEC, curiae, n. The as amicus (collectively “plaintiff referred to which had addressed argued that courts seamen”) separate complaints in —filed “compen- shrift to the gave short issue court defendant against Florida state NCL private actions satory function (owner ship) alleged parent and its by enforcing similar the securities laws” Cruises. company, Star Id. 1292. Although recognizing clauses. Id. choice sought damages for fail- complaints Their actions, Lip- private value these maintenance, cure, and provide ure to un- more opined, “We are confident con Court wages, negli- and for Jones earned compensatory ... that the than the SEC and unseaworthiness. Id. gence underlying United States securities The defendant NCL removed case litigation in En- by law be vindicated will compel sought court to ar- to federal law; English glish courts under Philippines pursuant bitration En- our conclusion that especially given so one-page employment agree- the seamen’s provides remedies to glish adequate (em- employment The Id. at 1292-93. appellants in case.” Id. ments. Ltd., Kingsley UnderwritingAgencies, Lipcon approvingly cited similar conclu- ("The (10th Cir.1992) Cir- the Second and Tenth sions reached fact ("In Roby, See 996 F.2d at 1360-61 subject cuits. transaction international considerations, agree- absence other or less favorable laws and remedies different jurisdic- or the ment to submit to arbitration the United is not a valid than those of States English must enforced tion of the courts enforcement, provided deny that the basis tacitly includes the even if inherently is not law of the chosen forum could been claims that have forfeiture some unfair.”). forum.”); Riley v. brought different or agreements, along with other facets of the not met10 an affirmative defense hiring process, regulated were seaman under the New York applies. Convention Philippine government through 1294-95. Employment Philippine Overseas Admin- After that all determining jurisdictional (“POEA”). The istration Id. at 1293. met, prerequisites were the Bautista employment incorporated by agreements next plain- considered whether the containing reference a document the arbi- any tiff seamen could assert affirmative clause, all provided tration which defenses under the Convention. We ad- disputes arising claims and from employ- only II, dressed the defenses in Article ment should be submitted to the National provides that arbitration agree- Philip- Labor Relations Commission ments should be enforced unless the pines, voluntary panel or arbitrator or void, “is null inoperative (presumably of arbitrators also in the incapable being performed.” New York Philippines). Id. at 1293 n. 5. The dis- 11(3). Convention, art. compelled trict court arbitration in the plaintiff argu- seamen made two Philippines jurisdiction en- retained (1) that provision ments: the arbitration force arbitral award. Id. at 1294. (2) was “unconscionable” and that the dis- Following prece- the Convention and Bautista, not pute was arbitrable.11 dent, recognized in Bautista F.3d 1301-02. This Court the framed (1) only “very that it: conducts a limited argument implicating first as II’s Article inquiry” a deciding compel in motion to language, “null and void” whereas the sec- Convention, arbitration under the (quo- id. argument ond appertained to II’s (2) omitted), tation marks and be must “incapable being performed” phrasing. of “mindful that the Act ‘general- Convention Id. ly strong presumption establishes a fa- in Importantly, in Bautista that we held vor arbitration of international commer- ” Article IPs “null void” and clause was con- disputes.’ cial (quoting Id. 1294-95 “ fined to ‘standard breach-of-eontract de- Insurers, 1440). Indus. Risk 141 F.3d at ” fenses’ scope and limited “[t]he The quoted Bautista Court Mitsubishi’s the Convention’s null and void clause ‘must instructions to enforce international arbi- interpreted to encompass only tration clauses if a those even different resolu- mistake, duress, fraud, tion situations —such as purely would be a reached domestic setting. and applied neutrally Id. at waiver—that can be explained 1302. We also ” a court must order on an arbitration unless international scale.’ Id. at 1302 (1) jurisdictional added) prerequisites DiMercuno, the four (emphasis are (quoting jurisdictional prerequisites 10. The analyzed separate mandate argu- 11. Bautista also that: propounded by plaintiff ment seamen: (1) agreement writing exemption there is an within that the employ- FAA seamen's Convention; (2) meaning of the applied employment ment to contracts their agreement provides for arbitration in agreements, foreclosing operation thus of the Convention; territory signatory of a Bautista, provision. arbitration See agreement legal arises out of a rela- at 1295-1300. In an exercise not, tionship, whether or contractual interpretation, this Court determined that the commercial; is party considered plain language chapter of the FAAbarred to the is not an American citi- plaintiff attempt apply seamen's zen, relationship or that the commercial exemption. Id. Because Lindo does not has some reasonable with relation one or appeal, raise this issue on it not further foreign more states. addressed here. Bautista, 396 F.3d at 1294 7.n. 79-80). dispute at could not be arbi- seamen ment issue plaintiff 202 F.3d at mistake, duress, fraud, Philippines. trated Id. not claimed had waiver, their arbitra- thus we enforced “null void” Having found Article II’s Id. agreement. tion having determined inapplicable clause asserted de- rejecting the seamen’s “in- was not provision arbitration contracts employment their fense Philip- capable being performed” “unconscionable,” in Bau- this Court were ruled that the pines, Bautista Court hardship economic concluded that tista had properly granted district court NCL’s unconscionability are not arguments plain- compel motion arbitration II of the under Article available defenses un- including tiff seamen’s claims claims— indicated that “[d]omes- Convention. We Philippines. der the Act—in the Id. Jones are transferra- tic defenses only they case ble to Convention Corp. (11th if G. Thomas Carnival Cir. scope limited within the of defenses fit 2009) Id. above.” described survey This us to v. Car- brings Thomas it that there exists a Since was “doubtful (11th Corp., Cir.2009), nival unequal precise, universal definition plain- where Court did enforce a ap- defense that bargaining power tiffs arbitration his Sea- effectively range across of coun- plied Wage plaintiff man’s Act claim. The Convention,” parties that are tries Thomas was the head waiter defendant to formulate one.” “decline[d] this Court ship, Carnival’s cruise which flew a Pana- Although acknowledging that the sea- flag manian of convenience. Id. at 1115— lead to a “hard bar- penury might men’s (Thomas) plaintiff 16. The sued Carnival hiring process,” point- the we gain during injuries ship. incurred onboard its Id. government, Philippines ed that the out complaint alleged at 1115. The Jones Act POEA, through a in operating had role the unseaworthiness, negligence, failure to hiring process protect seamen interests. cure, provide maintenance and failure n. Id. at 1302 13. pay wages Wage under the Seaman’s The next considered Bautista Court arbitration, place Act. Id. As to the plaintiff seamen’s claims were whether spec- the plaintiffs employment agreement Philippines. arbitrable in the The even disputes ified that would be arbitrated plaintiff Philippine had to a seamen cited Philippines. in the Id. at 1116. As to the involving tortious in which case conduct law, flag choice of the law the vessel’s Philippine Supreme determined (in in applied proceedings plain- national that both the labor arbiter ease, law).12 Panamanian Id. at tiffs body jurisdiction to labor relations lacked compelled The court arbi- 1123. district Id. at 1302-03. consider the claims. Philippines. tration Id. at 1115. it, contrast, by the case before Bautis- appeal, plaintiff argued that his On that preclusion ta Court commented such be arbitration clause should not enforced claim “is not foreordained.” Id. at because, alia, jurisdic- not all the inter noted that “Plaintiffs 1303. This Court beyond prerequisites tional for enforcement were options tort claims” and thus have met, provides a the Convention that Philippine provide case did not suffi- concluding employ- courts should not enforce arbitration basis for that the cient union, incorporated a collec- employ- reference 12. There was no indication that the agreement. negotiated by bargaining a tive ment contract Thomas was “ but, doing contrary ‘would applying pro- clause when so be its affirmative defenses ” country.’ public policy vision, to the Id. find that the particular we arbitra- Convention, (quoting New York art. question tion clause in is null and as void V(2)(b)). argued plaintiff that the for- of public policy.” matter Id. at 1124 n. law, eign apply forum would Panamanian (third added). Thus, emphasis although operated his clause and thus as II, Thomas does not cite Article it does prospective statutory of his waiver void,” twice use the term “null and rights, public poli- contravention U.S. is an II defense. cy. only This Court determined Thomas new de- crafted the Seaman’s Act claim met the Wage four fense, providing that arbitration is unen- jurisdictional prerequisites because thé if foreign applies forceable law because the (including other claims Thomas’s Jones plaintiff cannot assert U.S. claim) arose the arbitration before claims. The distinguished Thomas Court agreement went into effect.13 Id. 1117- its from case Mitsubishi and Vimar on the basis Thomas’s arbitration In analyzing plaintiffs affirmative provided that ap- Panamanian law would Convention, defenses the Thom- ply. The Thomas Court that —un- stated V, only as Court cited quoting to Article like a situation where American law would follows: affirmatively applied in an arbitration Recognition and enforcement of an arbi- (.Mitsubishi) setting potentially or at least tral award also refused if the applied subject later review U.S. authority competent country (Vimar) courts the case “[i]n before us — recognition where and enforcement is that, ... it undisputed regardless of the sought finds recognition ... [t]he procedural posture of the or enforcement of the award would be will applied resolving never be the reso- contrary to of that lution of Thomas’s claims.” Id. 1122-23. country. The Thomas Court its offered own char- (alteration Id. at 1120 and omission in acterization Mitsubishi Vimar original) (quoting Convention, York New [Supreme] then, Court, decisions: “The V(2)(b)). art. The Thomas Court did not has that held arbitration clauses should be anywhere cite Article II in opinion. At upheld if it is evident that either U.S. law opinion, however, conclusion of the (Mitsubishi) definitely applied will be [ ] declared, Thomas find “[W]e the Arbitra- if, is a possibility [sic] there it that tion requiring Clause in arbitration might apply and there will be later review Philippines under Panamanian law null (Vimar) at [ ].”14 Id. The 1123. Thomas as it void relates to Thomas’s Sea- (em- concluded that Wage “[t]he man’s Act arbitration Claim.” Id. at 1124 phasis provided In clauses that for appended a footnote bases these thereto, stated, Thomas holdings are in direct “[T]he narrow contradistinction to holding is that the govern Convention does the Arbitration in Clause [Thomas’s] expressly 13. The Thomas Court declined operated of-forum and choice-of-law clauses plaintiff's address whether Jones Act prospective party's in as a tandem waiver of a arbitrable, claim was as it did ..., not fall right pursue within statutory remedies we scope agreement. arbitration 573 condemning would have little hesitation in F.3d at n. 1120 against public policy.'" Thomas, (quoting 573 at 1121 Mitsubi- shi, quoted 14. The Thomas Court Mitsubishi's U.S. at n. 105 S.Ct. at 3359 " dicta, stating 19). footnote 19 that if 'the choice- n. agree- arbitration erly enforced Lindo’s only foreign ex ante that specifies which Contract, There provided his apply arbitration. ment in law would law in uncertainty governing as to the no arbitrated his Act claim would be Jones proceedings only arbitral proposed (his these citi- country forum foreign own — applied.” law will be Panamanian list the under Bahamian law. We zenship) why.15 reasons there opined Thomas Court The ‘opportunity of an “no assurance was ” Strong Presumption A. Arbitration process con- after the arbitration review1 Clause Enforcement cluded, any later possibility since “the that arbitration opportunity presupposes First, under the Convention and plain- award which produce will some precedent, Supreme Court and Circuit seek to enforce.” Id. tiff can in favor of strong presumption there is stated Thomas Court regard, freely-negotiated contractual choice-of-law single only arbitrating a “Thomas provisions, and this and forum-selection claim, Wage Act one issue—the Seaman’s special force in presumption applies with a U.S. solely from derived commerce. See the field international (2) “If, scheme”; applying Panamanian Vimar, 537-38, 115 at at S.Ct. U.S. law, no award in arbi- Thomas receives 2328-29; at 473 U.S. given the possibility forum —a distinct tral 3356; Scherk, 516-17, 417 U.S. at claim—he will nature of his based U.S. 2455-56; Bremen, 94 S.Ct. courts”; to enforce U.S. nothing have 15-16, 1916; Bautista, therefore, “will and, courts 1295; F.3d at 1292-94. Lipcon, F.3d at opportunity to re- any later deprived Indeed, provides that the Convention 1123-24. view.” Id. at contracting recognize” “shall written states that this pronounced The Thomas Court parties agree to sub- agreements wherein subsequent court review possibility of no any disputes mit and all to settlement being against deferential “would counsel Convention, New York art. arbitration. at 1124. Conse- circumstance.” Id. 11(1). stated, agree- This has Circuit no applied def- quently, Thomas Court circuits, that “a court ment with other compel arbitration refused erence limited when “de- very inquiry” conducts a Wage plaintiffs as to the Seaman’s un- arbitration compel a motion to ciding Id. Thomas thus concluded claim. Bautista, Act.” der the Convention that select agreements omitted). marks (quotation F.3d at 1294 un- than law are unenforceable other Therefore, analy- necessarily we start our they eliminate der the Convention because presumption a in favor of strong sis with statutory claims and a plaintiff’s U.S. in Lindo’s Con- agreement the arbitration award, plaintiff may possibly receive no and, fact, must view the choice tract precluding later court review. prima as facie Lindo’s Contract

clauses ANALYSIS IV. valid and enforceable. reviewing the After Convention Are Statutory B. Claims Arbitrable U.S. precedent, and Circuit

and Court Second, both the Court’s that, at this initial arbitration- we conclude precedents squarely and have prop- court our Circuit’s stage, the district at 1294. de court’s “We review novo district Bautista, compel arbitration.” order held that arbitra- providing mandatory recognition: contracts “The court of a statutory tion of claims are U.S. enforce- shall, ... at Contracting request State able, contrary clearly intention absent parties, one of parties refer the specifically expressed by Congress. arbitration, unless it said finds Vimar, 540-41, 515 U.S. at at S.Ct. void, agreement inoperative null is or ” arbitrable); (holding claim 2329-30 COGSA incapable being performed. York New Mitsubishi, 626-28, 640, 473 U.S. at 11(3) Convention, art. 3354-55, S.Ct. at 3360-61 Sher- (holding arbitrable); Scherk, Act man claim Bautista, held (hold- 519-21, at at U.S. 2457-58 is “null arbitration and void” ing Exchange Securities Act claim arbitra- 11(3) only Article of the Convention ble); Bautista, (holding it through where is obtained those limited arbitrable). Jones Act claim The fact that situations, fraud, mistake, duress, “such as Lindo a statutory asserts Jones Act claim waiver,” constituting “standard strong does not affect the presumption breach-of-contract defenses” that “can be favor of enforcement of the choice clauses applied neutrally on an international in his Contract. See (quotation scale.” 396 F.3d at 1302 marks (stating is “[t]here omitted). Lindo’s incorporates Contract depart no reason to the strong pre- from” union-negotiated CBA, and there is no sumption enforceability party “where a fraud, any showing—of claim—much less bound an arbitration raises mistake, duress, or To waiver. the extent statutory claims on rights”). founded II, Lindo relies on Article his claim fails. Because encompassing choice clauses enforceable, claims Lin- are argues Lindo that the arbitration argues do his arbitration can- clause provision unconscionable, maintaining (1) not be enforced it because eliminates that he signed the Contract a “take-it- (2) his Jones claim due to the or-leave-the-ship” However, basis. unequal bargaining positions of Lindo argument was the same asserted NCL.16 (stat plaintiff seamen Bautista. See id. C. Article II: “Null and Void” ing that plaintiffs argued “crewmembers Defense Stage put in were a difficult it ‘take it’ leave Arbitration-Enforcement presented situation when with the terms of contentions are fundamen

Lindo’s employment” allegedly tally “render[ed] flawed for several reasons. As a unconscionable”). Convention, resulting signatory agreements to the the United States, courts, and in turn expressly rec This Court rejected argu must ognize agreements long ment, so concluding that an unconscionability jurisdictional the four prerequisites are defense was not available under II met17 and no available affirmative de (“It of the Convention. See id. is doubtful fense under applies. the Convention See that there a precise, exists universal defini Bautista, 396 F.3d at 1294-95. unequal tion bargaining power de fense that applied effectively

At arbitration-enforcement stage, 11(3) Article of the across the recognizes range Convention countries that are par only these Convention, affirmative defenses that to to ties and absent 16. We take these contentions appeal, challenges from Lindo’s 17. On Lindo none of these opening "Statement of Issues" in his brief jurisdictional prerequisites. appeal. Appellant’s See Br. at 1. Assocs., I.T.A.D. contrary, interpretation”); we decline to of [its] to indication one.”). Bros., (4th Inc. v. Podar 636 F.2d formulate Cir.1981) (“[0]ur interpretation of Ar- binding prior attempt In an to dismiss 11(3) only not proviso ticle must observe criticizes Bautista. precedent, the dissent arbitration, Bautista’s, strong policy favoring but Yet, articulation of the narrow adoption must also foster the of standards clause is in of the “null void” scope uniformly applied which can on an be au- prevailing accord with the complete added)); (emphasis scale.” international See, thority e.g., circuits.18 Di- in other McCreary & v. Tire Rubber Co. CEAT Mercurio, (stating at 79 that the 202 F.3d (3d Cir.1974) 1032, 1037 S.p.A., 501 F.2d “null and void” clause “limits the bases (“There nothing discretionary about arti- an international arbitration upon which Convention.”).19 11(3) cle may to challenged be standard (emphasis defenses” breach-of-contract added)); Riley Kingsley Underwriting v. D. Aid Thomas Does Not Lindo (10th Ltd., 969 F.2d Agencies, heavily on Because Lindo relies Thom- Cir.1992) “the ‘null (agreeing that and as, explain why at length we Thomas does to exception in the Convention is void’ help him. narrowly rejecting public construed” matter, preliminary a note it As we policy defense at arbitration-enforcement is difficult to ascertain whether Thomas is V(2)(b)’s (citing Scherk and Article stage an Article II or Article V ease. As men- stage)); application award-enforcement above, tioned Thomas never cited Article Ragno, v. 684 F.2d Ledee Ceramiche V, quoted II but instead cited and Article (1st Cir.1982) (rejecting notion “contrary ... contains the which defense was available under public policy York policy” defense. See New Conven- because “an the “null and void” clause V(2)(b). However, tion, does art. Thomas interpretation expansive the clause II’s “null and employ twice void” goals be antithetical & language. n. 17. and “not See parochial even Convention” Arti- applying To the extent Thomas was interests of the nation be the measure permitted supersede suggest- dispute, 18. The dissent cites one circuit case should ing that “null and clause could also presumption. void” of the Convention is encompass public policy See defense. approach served leads best Compagnia Rhone Mediterranee Francese di upholding agreements at 54 to arbitrate.” Id. Lauro, E Assicurazioni Riassicurazoni Accordingly, the en- court (3d Cir.1983) (stating that "an agreement. forced only to arbitrate is ‘null void' subject internationally when it is to an Stevens, dissenting 19. Even whose Justice duress, mistake, recognized defense such as unsuccessfully opinion argued in Mitsubishi fraud, or waiver ... or when it contra- together" "reading II and V Articles policies of the forum venes fundamental at the enable defense arbitra- Yet, state”). "[t]he even that court stated that stage, acknowledged the tion-enforcement language void' must be read nar- 'null and scope of the "null and void” clause. limited despite rowly.” referencing first Id. And 659-60, See 473 at 3370-71 state,” policies "fundamental of the forum (Stevens, J., Specifically, dissenting). Justice "signatory that court went on to state that "null void” Stevens stated that the clause effectively joint policy declared a nations have fraud, mistake, referred “to matters presumes enforceability agree- inducement, problems of duress in the parochial in- ments to arbitrate. Neither state, feasibility.” procedural Id. at fairness and states terests nor those forum having significant relationships 105 S.Ct. at 3370. with the more 1278 II, rule, prece- precedent

ele Thomas failed to follow our or panel by we are bound II dent the Article case of Bautista. panel holdings earlier ... unless until and they by are overruled en or the Su- .banc First, not Thomas did cite or acknowl- Court.”). preme (1) edge governing principles: Bautista’s “very inquiry” courts conduct a limited We further note that Thomas’s use of arbitration, deciding compel a motion to 19 Mitsubishi’s footnote does eliminate (2) a “strong presumption” there is in its conflict with Bautista. quoted Thomas Bautista, favor of arbitration.20 396 F.3d “prospective language waiver” in Mit- omitted). (quotation at 1294-95 marks Thomas, subishi’s footnote 19. See 573 Second, importantly, and more Thomas Mitsubishi, F.3d at 1121 (quoting holding failed to follow that lim- Bautista’s 19). at n. 637 105 S.Ct. at 3359 n. application ited the “null and void” clause’s though Thomas itself as reads footnote 19 “only fraud, those situations —such as Yet, holding.21 is Mitsubishi’s 19 footnote mistake, duress, and can waiver—that dicta,22 undisputably is the Supreme applied neutrally international Court has never once invalidated an arbi- scale.” Id. 1302 marks (quotation omit- tration on that basis. Mean- ted). public Thomas’s creation of a new while, governing principles in Mitsubi- policy defense under Article II —based on shi are not even mentioned in Thomas. statutory the elimination of a U.S. claim example, For Mitsubishi that articulated Wage the Seaman’s defini- Act— (1) “The Bremen and Scherk establish a tion cannot be applied “neutrally on an strong presumption favor of enforce- scale,” international as each nation oper- ment of freely negotiated contractual ates under different statutory laws and (2) choice-of-forum provisions”; pre- pursues policy different concerns. Thom- sumption is “reinforced the emphatic wholly subject as failed to Thomas’s policy federal in favor dispute of arbitral policy claim test “null Bautista’s for (3) resolution”; this federal “applies void” defenses available under Article II. with special force the field of interna- Thomas, Compare 1120-24, 573 F.3d at (4) commerce”; tional U.S. Bautista, Thus, with 396 F.3d 1302. including Sherman Act claims the extent plaintiff Thomas allowed the claims— subject issue Mitsubishi —are to the prevail seaman to on a new public policy presumptions, same pro-arbitration II, absent defense under Article Thomas violates contrary congressional Bautista intent. prior panel precedent and our Smith, 626-28, 631, rule. See v. 473 United States 105 S.Ct. at F.3d 3354- (11th Cir.1997) (“Under the pri- disregarded 56. Thomas principles. these Bautista's, Despite relevance, significant added)); (stating "[t]he sis id. (1) only Thomas cites Bautista for: de novo provided clauses hold- bases these review; jurisdictional prerequi- four ings ] Mitsubishi and are [in Vimar in direct sites; employ- fact that seaman contradistinction to the Arbitration Clause in ment contracts are considered commercial specifies [Thomas's] ex ante that Thomas, under the Convention. 573 F.3d at only foreign apply law would in arbitration” Bautista, (citing 1294-96). 396 F.3d at (first added)). emphasis Thomas, (stating 21. See 573 F.3d at 1123 Ltd., Sturge, 22.See also Shell R.W. F.3d Supreme Court held "has that arbitration (6th Cir.1995) (characterizing Mit upheld clauses should be if it evident dicta); if, Bonny subishi’s definitely either footnote v. Soci applied will be (7th Cir.1993) ety Lloyd’s, possibility might [sic] there is a apply that it (first (same); and there will empha- Roby, (same). be later review.” at 1364 at 115 S.Ct. at 2330. s ad addressed. not heed Vimar1 also did Thomas con again, Thomas speculate dismissing Vimar not should that courts monition assurance of an that “there is no the initial tended at outcomes about arbitration Sea for review’ Thomas’s ‘opportunity in stage. Unlike arbitration-enforcement pos “the Act claim” because Wage at no man’s in Vimar parties opportunity presup later sibility would ever that U.S. law stipulated point produce like will some law would that arbitration Although Japanese poses apply. liability plaintiff can to en which the seek defendants’ award ly lessen Vimar Thomas, at 1123. by U.S. 573 F.3d Yet that mandated force.” below law, that such Supreme why stated not Vimar s Court Thomas did indicate “[a]t since “premature,” court would arguments were statement —that district not stage it is estab interlocutory the award-enforce jurisdiction have at will apply pro law the arbitrators stage lished what the arbitration ment review petitioner will claims or that petitioner’s ceedings equally apply not Thom —did aas result.” protection receive diminished The of an arbitral tribunal prospect as. 540, 115 S.Ct. at 2329. 515 U.S. just awarding damages no Vimar was as it in Thomas.23 In as conceivable was by stating Vimar dismissed Thomas case, prospect every arbitration there is a that, regardless of undisputed that “it is of no award. procedural posture applied resolving law will never be wholly that Vimar refutes the Given Thomas, of Thomas’s claims.” resolution point, the dissent logic Thomas ignored Vi- at 1122-23. Thomas Vimar, distinguish contending attempts to interlocutory conclusion maVs “subsequent opportunity for its re- it is es- stage arbitration-enforcement not apply statement somehow does view” tablished, not applied, even if U.S. law is expressly if a court has not re- district may apply the arbitrator or what law (as case). jurisdiction tained Lindo’s pro- “diminished plaintiff will receive has nowhere hinted The Vimar, tection as result.” so, do a district court need however. no at 2329. There was as an action to surprising, This is not Pan- analysis in of what remedies Thomas brought be confirm arbitral award provided. significance of amanian law separate action under federal law. that, arbitration-enforce- Vimar 206; § § with id. Compare 9 U.S.C. premature stage, generally ment it is (“An proceed- § 203 action or also id. see will findings make about how arbitrators falling shall be ing under the Convention process, whether conduct arbitral and trea- arise under laws deemed heard, for- claim be or whether the will The district ties of the United States. in- adequate will or eign-law remedies ... shall have courts the United States adequate. jurisdiction such an action original over regardless of the amount Additionally, empha proceeding, the Vimar Court added)). Indeed, “subsequent op controversy.” sized that there would Court indicat- in Mitsubishi pub to ensure that portunity review” might federal courts have that various adequately have ed lic interests been perform analy- an Article V example, would be able to even if a zero-dollar arbitral 23. For entered, the award or refuse and either enforce when a defendant seeks sis award is V recog- based on an available Article award the zero-dollar arbitral have Convention, defense under the in- affirmative the district court nized and enforced cluding policy. plaintiff, against the district court then 1280

jurisdiction subsequent Policy in a action to en E. Article V: Public at Defense Arbitral award, Stage merely force an arbitral not the Award-Enforcement arbitration at the Ar compelled court that Nevertheless, Lindo that ar- argues his 638, at stage. ticle II 473 105 See “contrary is the bitration to (“Having arbi permitted policy” at the public S.Ct. 3359 of the United States under forward, Article V. Lindo cites Thomas for this go the national courts tration to argument, Article V too. will have the opportu the United States to nity stage at the award-enforcement problem The first is Lindo legitimate ensure that the interest in the that applies only Article V at the arbitral enforcement of antitrust laws been the has stage not award-enforcement and at added)); see also (emphasis addressed.” stage arbitration-enforcement issue Seguros Reaseguros, Vimar Y S.A. v. here. expressly provides, M/V Article V “Rec REEFER, 727, (1st ognition SKY an 29 733 Cir. arbitral enforcement of 1994) may compe award also refused if the (stating a foreign that “unlike forum authority in country recog tent where clause, to selection arbitrate nition and is that sought finds does court deprive not federal of its recognition ... [t]he enforcement of the jurisdiction underlying dispute”), over the contrary award would be the public 528, aff'd, 2322, 515 U.S. 115 S.Ct. 132 country.” policy that New York Con L.Ed.2d 462.24 V(2) vention, added). Yet, (emphasis art. reasons, For all of these we conclude Article has no application V in the interloc Thomas does aid Plaintiff Lindo utory procedural posture of this at this Article II arbitration-enforcement where seeks NCL to enforce arbitration stage. dispute.25 outset of the assertion, 296, 300, Contrary (1983) (“We to the dissent's Justice S.Ct. 78 L.Ed.2d 17 concurring opinion concluding O'Connor's actu- Vimar refrain from here that the differ 542, ally point. ing language this See 515 U.S. at in the two subsections has confirms J., (O'Connor, concurring) 115 2330 meaning same pre in each. We would not (stating "ffjoreign arbitration clauses simple sume to ascribe difference to a presented the kind here do not divest domestic draftsmanship.”); mistake in United States cf. jurisdiction, Bean, courts true foreign unlike fo- v. 537 U.S. 76 n. added)). rum selection clauses” (“ 587 n. L.Ed.2d 'The use pronounced Justice O’Connor further that this gen of different words within related statutes foreign distinction between forum selection erally implies meanings that different were ” foreign clauses and arbitration clauses “is an (quoting Singer, intended.’ 2A N. Sutherland is, all, important one—it after what leads Statutory Statutes Construction petitioner's argu- Court 46.06, to dismiss much of (6th 2000))); § at 194 ed. United States Here, course, premature.” ment as Williams, (11th v. Cir. foreign we are faced with a arbitration clause 2003) same). (quoting foreign and not a forum selection clause. As that, problem second as indicated Vimar, Lindo raise sources, the dissent’s own cited Conven- stage, defense at award-enforcement delegates actually propos- tion's considered a expressly provides. the Convention language linking al to agree- insert attempts sidestep plain 25. The dissent stage ments award-enforcement —and thus, import language by suggesting public of this policy Article V’s defense—but Article did public proposal II not include Article V's was voted down. See Leonard policy language delegates Quigley, because the V. were Accession the United States hurry drafting Recogni- when Convention. The United Nations Convention on problem first reading Foreign is that such a tion flouts Arbitral Enforcement of See, Awards, (1961); e.g., clear canons of construction. Rus Yale L.J. G.W. States, 16, 23, Haight, Recognition sello v. United Convention on the Bau stage. Compare award-enforcement two instances In the language tista, Ar quoted (analyzing has F.3d at 1301-02 defense, it has indicated V’s “null void” defense at arbi ticle II award-en- applied it is stage), and Lobo tration-enforcement stage, at the arbitration-en- not forcement Inc., Cruises, 891, 488 Celebrity F.3d instance, in Scherk stage. For forcement (11th Cir.2007) (citing quoting and 894-96 consider declined to Supreme Court the an posture of procedural Article II the representation fraudulent plaintiffs case), Four with arbitration-enforcement arbitration-enforcement at claims Resorts, v. Con Hotels & B.V. Seasons “presumably [those stated that stage, but Barr, S.A., 1349, 533 F.3d 1350-53 sorcio raised, of under Art. V could be claims] Cir.2008) (11th gives (noting Article V and Recognition on the the Convention of discretion to refuse enforcement courts Awards, Foreign of Arbitral Enforcement only one of Article V’s an award after whatev- challenging the enforcement of shown), has Four been Seasons defenses ar- produced through arbitral award is er Barr, Resorts, & B.V. v. Consorcio Hotels 14, n. S.Ct. 417 at 519 94 U.S. bitration.” (11th S.A., 1164, F.3d 1166-72 Cir. 377 n. 14. 2457 at 2004) (in appeal, remanding an earlier before, in Mitsu- Similarly, as noted of to district court consideration case “Having stated: Court bishi under Article V at award-en defense forward, to go the arbitration permitted Czarina, L.L.C., 358 stage), forcement of the United States national courts “Ar (noting at 1292 n. 3 F.3d at the award- opportunity have the will imposes pre II ticle Convention legiti- ensure that the stage to asking on the court requisite party enforcement of in the mate interest laws been addressed.” later commenting antitrust has arbitration” and compel at (emphasis at 105 S.Ct. Article de V enumerates affirmative added). point, Mitsubishi On this award), an an confirming fenses to action re- “The Convention continued: Court Insurers, 141 Risk F.3d at 1441- Indus. right signatory country to each serves raised Arti (analyzing defenses where award refuse enforcement stage), at cle V award-enforcement ‘recognition or enforcement Gov’t, at Ethiopian Imperial contrary would be award (analyzing n. V de & 1 335-37 ” country.’ Id. at stage). fense award-enforcement York Con- (quoting New 3359-60 these departure is a from Thomas clear Scherk, vention, V(2)(b), citing art. precedents, too.26 14) n. at 2457 n. at 519 94 S.Ct. supporting ease the lack of Given position public policy on the dissent’s uniformly cited or

This Circuit has also (and despite plain “timing” question II at the discussed Article arbitration-en V), the relies Articles II and dissent text of stage and Article V forcement permit invalidate an arbitra- do not a court to Foreign Arbitral Awards: Sum- Enforcement public policy provision ab initio tion Analysis Nations mary Record United (2) provide "does grounds"; Article II (1958). 27-28 Conference agreement to of an allow for invalidation Thomas, ”; 'public policy’ no chal- the face of we see based on 26. On arbitrate applies application V timing of Arti- defense Article lenge to the "The Here, contrast, an arbi- only challenge ar- the enforcement of expressly NCL cle V. Appellee’sBr. at 9. V tral award.” "the II and gues: Convention’s Articles (Douglas, J., & hodgepodge instead on a of alternative 94 S.Ct. n. 10 sources, including a New York Convention Corp. Mitsubishi Motors dissenting); articles, account, and a delegate law review Chrysler-Plymouth, Soler Department Of State memorandum.27 (1st Cir.1983), rev’d in relevant 164-66 course, these do not propound sources Mitsubishi, part Rather, arguments. they are the new rejected those arguments very same from the —derived then, arguments and we must do so here upon dissenting same sources —relied as well.28 Scherk opinions along reasons, all foregoing For we hold with an lower overturned court decision. Lindo public cannot raise an Article V generally See 473 U.S. at 659- (Stevens, J., policy defense at this initial S.Ct. at arbitration- 3370-71 dis Scherk, n. senting); stage. 530 & enforcement instance, difficulty 27. For the a in dissent cites footnote observed that this from the arose " article, (3) speculated law any review which omission in Art. II 'of words poten- that the "null and void" clause agreement could which would relate the arbitral tially public allow forum to states entertain capable to an arbitral of award enforce- ” policy arguments at the arbitration-enforce- under ment the convention.’ Ibid. stage. Quigley, supra ment See note Haight continues: paragraph 1064 n. 71. In the same to which proposal put "When the German was to a that, appended, Quigley this footnote is states vote, majori- it failed to obtain a two-thirds clause, applying “[pre- in the "null and void” (13 9) ty to the and Article was thus sumably, specified by parties the law in adopted linking agree- without words agreement govern.” their 1064. should Id. at ments to the awards enforceable under the entail, This would in Lindo's that Baha- Convention. Nor was this omission cor- mian law would determine arbi- whether the Report Drafting rected of the Com- tration and is “null void.” This is (L.61)....” mittee party a result for no and which contends Scherk, U.S. at n. at 2462 supports. which no case law It reveals also J., (Douglas, dissenting) (quoting n. 10 G.W. problems relying upon inherent dated Haight, Recognition Convention on the secondary opposed plain sources to as Foreign Arbitral Awards: Sum- Enforcement language binding prec- of the Convention mary Analysis Record United Nations edent. Conference). The went Scherk dissent on to " that, say opinion, Haight’s ‘may courts rely secondary Even if we were to these ” " agree- allowed some latitude’ an 'find wholly ignore plain sources—and thus incapable performance ment it if offends text Convention ” public policy or the of the forum.’ precedents argu- and Circuit dissent’s —the omitted). (quoting Haight) Id. example, ment still founders. For as even " However, Haight considered this 'limited acknowledged, dissent in Scherk G.W. ” " apart opening,’ from which 'the Confer- Haight's summary of the New York Conven- appeared unwilling qualify ence the broad proceedings delegates tion’s revealed that the undertaking only recognize not but also to rejected proposal considered-—but to link —a ” give agreements.' effect to arbitral public Article V's defense to Article II's course, (quoting Haight). Of stage: sup- weak arbitration-enforcement port represents opinion delegate, discussed, of a lone being When Art. II was clearly controlling particular- and is delegate pointed Israeli out that while a law— could, ly adopted by since it was not the Scherk court under the draft Convention as stood, majority. Haight’s interpre- And it then even refuse of an tation, public incompatible policy exception award which was would not with " II(3)'s policy, apply 'the parties court had to refer "null void” lan- guage, "incapable per- or not whether such reference but rather its incompatible public pol- lawful or language, was with formance” have treat- courts ” Id., icy.’ delegate separately. at 27. German ed statute. See provided by Lacks a U.S. Policy Public remedies F. Lindo’s Defense (“We clauses, choice will not invalidate id. Stage Anyway This Merit at however, simply because remedies ar Alternatively, assuming, even forum contractually in the chosen available infirmity were guendo, timing favorable than those available in are less raise and Lindo could somehow immaterial States.”). the courts United at the public policy an defense Article Y Although public policy interests underlie Lindo’s stage, arbitration-enforcement Thomas, Wage Act claims Seaman’s agreement still challenge to his arbitration underlying public policy interests fails. in Lipcon namely, claims — First, again once relies on Thom- Lindo components of the most crucial some Yet, public policy argument. as his States securities laws—are least United earlier conflicts with this Circuit’s Thomas closely important. Lipcon resembles does Lipcon29 which Thomas precedent issue in Thomas —less Thomas, Lipcon Like not cite or discuss. forum foreign favorable treatment in a un- containing both involved To Thomas foreign law. the extent der clauses, and forum-selection choice-of-law case, wholly fails an Article V Thomas in a dispute for a to be heard which called precedent take into account our earlier (2) law; plain- foreign forum under foreign Lipcon. claims; and asserting tiffs Thomas, Second, even aside from Lin- (3) claiming choice clauses plaintiffs their challenge to his arbitration do’s should not public policy and violated U.S. recog- Bahamian law itself fails because 1288-89, at Lipcon, be enforced. actions; if, even negligence nizes though the Lipcon, In even 1298-99. claims, as Lindo U.S. law under Jones statutory securities plaintiffs asserted U.S. Act has a more relaxed causation standard claims, choice-of- this Court enforced the law, negligence for claims than Bahamian English provided where law clause arguments precisely were the same these Se- less remedies than the U.S. favorable (and rejected) Lipcon. lodged Lipcon Acts. Id. 1297-98. curities that “the United Lipcon acknowledged are choice-of-law clauses concluded that provide [the securities laws would States remedies “only when the unenforceable plaintiffs] greater variety a American with inade- in the chosen forum are so available and a chance of suc- greater of defendants funda- quate that enforcement would be lighter and causation cess due scienter Id. at mentally unfair.” 1297. marks omit- requirements.” (quotation contrast, By Thomas no men- contains ted). Nevertheless, held that this Court law, much less an anal- tion Panamanian choice-of-law and forum-selection ysis the Panamanian remedies of whether and ordered clauses were enforceable inadequate to be fundamen- would be so as English to be heard in courts under matter rejected the tally Lipcon explicitly unfair. law, English since “we will declare unen- type policy defense asserted public only choice when the forceable clauses i.e., clauses that choice-of-law forum available in the chosen are remedies Thomas — so could would doing inadequate enforced when that enforcement cannot be so fundamentally panoply of unfair.”30 Id. deprive plaintiff of the full public argument at policy Lipcon was a Convention how raise 29. Because stage. case, II timing arbitration-enforcement respecting the was no issue there Thus, public particularly policy defense. it is cognizance of the point, Lipcon stated that it took where we assume relevant on "prospective language waiver" of Mitsubishi's some- argument that Lindo could the sake of minimum, clause, In Lindo’s the arbitration if er. At a Lindo has not shown fundamentally fair anything, is for several that his are inadequate, remedies much starters, the clause is part reasons. For strong less overcome presumption collective union-negotiated bargaining his arbitration clause. agreement. that the The fact Jones why exemplifies public This case expressly claim was referenced in that policy defense of Article V be raised type CBA is clear that this indication of only at the arbitral award-enforcement expressly during claim was considered Vimar, stage. Similar to the arbitrator at negotiation Lindo process. cannot obtain that time will have ruled and the record advantages union-negotiated of his will legal principles show what ap- were Contract, rejecting while what he now per- plied recovered, and what Lindo or did not disadvantages. ceives as its This union- recover, why. Lindo’s negotiated agreement is enforceable and “premature” defense is at this initial arbi- valid even if it waives Lindo’s U.S. statuto- Vimar, See stage. tration-enforcement ry claim under the Jones Act. 540-41, 2329-30; 115 S.Ct. at Additionally, has Lindo not shown that international arbitration under Bahamian 3359-60. negligence law an provide inadequate will Lastly, position effectively Lindo’s remedy. regard, we note that mutually eviscerate binding nature of NCL filed the of Bahamian affidavit attor- maintains Convention. Lindo that his ney Stephen Turnquest, A. who averred is void against that, law, plaintiff under Bahamian sea- public policy because he cannot assert his injured man employer’s breach of statutory U.S. under rights Bahamian law. duty may negligence sue in and recover By logic, courts other nations could damages pain suffering, for loss of valid, likewise recognize refuse to mutually wages earnings, and future and medical agreed-upon provisions arbitration if they Moreover, expenses. a seaman may recov- contemplated application the of American aggravated er damages punitive or dam- law, in derogation of home-based statutory ages damages that unavailable — every remedies. Yet if country refused to strict Jones Act cases. And while Lindo recognize agreements arbitration that con- submitted the of a affidavit Bahamian law- template application law, the of foreign yer the describing lighter the causation re- multilateral of quirements commitment the the Convention Jones Act as com- be defeated. See law,31 would pared to Bahamian Lindo’s expert did not tie issue to U.S. 639 n. 105 S.Ct. at causation the facts 3360 n. 21 (“The explain what, utility Lindo’s case any, if of the Convention in promot- impact it ability ing could have his to process recov- the of international commercial footnote but nevertheless concluded Lindo filed the affidavit of Bahamian attor- Gomez, ney Monique "enforcement Vanessa Ann Lloyd’s the who [defendant] averred that Bahamian law "under there has choice public clauses does contravene to be a direct causal link between the breach

policy.” Lipcon, Lip- at 1298. The injury complained the of. The burden of upheld con Court even the choice clauses proof negligence proba- is on a balance of despite the fact that U.S. Securities Acts bilities and there is no relaxation of the causa- provisions, contained anti-waiver Thus, tion element under Bahamian Law.” provision barred requiring contractual Gomez stated causation burden of security buyer compliance to waive with the proof is reduced under the Jones as com- U.S. Securities Acts. pared negligence analogous to claims under Bahamian law. willingness of Act would be hinder the depends upon the Convention arbitration ”). go they purpose.... courts to of matters Convention’s national let own.”). think of as their normally would reveal precedents Supreme These Vimar, it Court stated recognition Court’s and our Circuit’s that U.S. courts abide imperative was reciprocal nature of Convention and the New York treaty obligations under uniformity the need the enforcement “If is States to be United Convention: agreements. Lindo’s arbitration Under of international gain benefits able reading implies of the Convention—which have as a trusted part a role accords ab agreements that arbitration are invalid endeavors, its in multilateral courts ner application foreign initio whenever the interpret be most cautious before should may displace statutory a U.S. claim— in such legislation its domestic manner ing exception would swallow agreements.” violate international as to signatory the rule that nations “shall rec- 539, 115 at 2329. S.Ct. ognize” agreements.32 New observed As Court 11(1). Convention, York art. Scherk, delegates to the Convention “[T]he recognize ap- We that NCL’s brief on frequent sig- concern that courts of

voiced peal argues that “Lindo has failed to es- countries in which an natory tablish that international arbitration will sought enforced arbitrate should claim,” nullify or lessen his U.S. enforcement of permitted not be decline “Lindo failed to has establish parochial agreements on the basis of such deprive him provision choice-of-law in a desirability of their manner views any remedy,” of the Jones Act or of mutually binding that would dimmish in the is no evidence record estab- “[t]here agreements.” nature of lishing Law application Bahamian n. n. at 2457 15. This prohibit will the arbitrator’s consideration in Lobo that the Scherk noted Court “ Act,” claim based on the Jones Lindo’s to be ‘strongly considered Convention not one “there is shred of evidence congressional persuasive poli- evidence of prevent will [Lindo] Bahamian law cy’ in favor uniform enforcement of Ap- from Act claim.” reaching his Jones agreements, despite the poten- 13-14, 23. pellee’s Br. at We need parochial policies present presence tial veracity to examine the of these claims Thus, parts of in other the U.S. Code. here, reach we forth the conclusion set nullify provision the arbitration here would Vimar, 541, however. 515 at 115 purpose hinder the of the Convention and Cf. that, (stating S.Ct. at Lobo, “[u]nder 2330 congressional subvert intent.” 488 case,” (citation omitted) circumstances of this it was “correct (quoting 896 Scherk, 15, judgment to reserve on the choice-of-law 417 94 U.S. at 520 n. S.Ct. Bautista, 15); question, as it must be decided in the first n. see 396 F.3d at 2457 also by (citation (“Indeed, industry-specific instance the arbitrator” omit- 1299 read ex- ted)). ceptions language into broad Furthermore, ("A parochial by preferred refusal the courts of

32. Lindo’s rule would litigants country arbi- provide to avoid arbi- one to enforce international who seek their so; unseemly bargain ... ready means to tration invite tration with do by mutually jockeying namely, by injecting a U.S. claim destructive litigation complaint, viability. parties tactical advan- regardless of its to secure into Scherk, 516-17, tages.”). Cf. Congress Excepted governs G. Has Not Jones Act FELA’s venue provision Jones cases, Act FELA then so must case law

Claims From Arbitration interpreting provision so this too must Lastly, Lindo contends that a 2008 § a FELA pro- U.S.C. section that Act, Amendment to the Jones which delet attempts contractually hibits limit liabil- provision, Congress ed its venue means contract, ity “Any rule, under FELA: reg- has rendered Lindo’s Jones Act claim inar ulation, whatsoever, or device purpose style argument bitrable. We this as a or intent of which shall any be to enable Congress “subject- claim that created a common exempt carrier to itself from exception” arbitrability, matter as dis liability chapter, created shall to ”34 cussed in Mitsubishi. See 473 U.S. at 639 § that extent be void.... 21, 105 n. S.Ct. at 3360 n. 21. Lindo’s claim lacks merit for several January Congress In amended the Report reasons. The Committee on the provi- Jones Act. See National Amendment stated the venue Defense Authori- repeal merely sion’s was clarify meant to zation Act for Fiscal Year Pub.L. No. existing law: 110-181, 3521(a), (2008) § 122 Stat.

(codified being repealed This subsection is amended at 46 U.S.C. make prior regard- clearer that the 30104). § doing, so it eliminated the venue, ing including holding of Pure provision Jones Act’s venue subsection Suarez, Oil Co. 384 U.S. 202 [86 S.Ct. (b), which provided: “VENUE.—An action 16 L.Ed.2d and cases 474] brought this section shall be in the it, following effect, remains in so that judicial employer district which the re- brought the action wherever the employer’s principal sides office is employer seaman’s does business. Be- 30104(b) (2007). § located.” 46 U.S.C. provision cause the codified could be Since the requires Jones Act that “[l]aws read to be inconsistent with that hold- of the United regulating recovery States ing, the Committee believes it should be to, of, for personal injury or death a rail- repealed, retroactive to the date of codi- way employee apply to an action under fication .... section,” § id. Lindo contends H.R.Rep. 110-437, No. at 5 (empha- repeal of the Jones Act venue sis purpose of the 2008 provision thereby entails that the venue Amendment, words, clarify other was to provision of the Federal Employers’ Lia- already what had been settled (“FELA”),

bility 56,33 § 45 U.S.C. now Court’s decision in Pure governs. Lindo argues Indeed, next if Congress Oil.35 made it clear that provides: 33. Section 56 from the "prohibit[ing] common law” em ployers Act”); contracting from around the chapter Under an action Serv., Sellan, 848, Sea-Land brought Inc. v. 231 in a district court of the United (11th Cir.2000) ("The States, purpose 851 of 45 in the district of the residence of the defendant, prevent § employers U.S.C. 55 is to from un or in which the cause of action arose, dermining liability scheme created or in which the defendant shall be negligence.”). FELA for their doing commencing business at the time of jurisdiction such action. The courts 35.Pure Oil clarified that the definition of chapter United States under this shall 1391(c) § residence contained in 28 U.S.C. be concurrent with that of the courts of the corporation enabled a to be —which several States. any judicial sued in district where it was § 45 U.S.C. 56. "doing applicable business” —is to causes of Sonell, Ry. Act, 34. See also S. 549 U.S. notwithstanding action under the Jones Norfolk 158, 168, 799, 807, 127 (now-repealed) S.Ct. 166 L.Ed.2d provision conferring 638 its venue (2007) (stating expressly departed jurisdiction upon "FELA the court of the district "in

1287 clause and the arbitration argument fails effected being change was no substantive Amendment, a fun- enforced. much less must be in his Contract by the 2008 arbitra- international damental revision the Convention: CONCLUSION V.

tion conducted in- this bill are not provisions [T]he reasons, we affirm foregoing For changes any substantive make tended NCL’s mo- granting court’s order district in that title. codified laws now to the compel arbitration and tion to dismiss itself, these codification Like remand. Lindo’s motion to denying the law intended to restate changes are AFFIRMED. including change, without substantive interpreting the ear- case law applicable BARKETT, dissenting: Judge, Circuit lier, provisions. pre-codification 1985, Mit Court issued 2 Id. at Corp. Chrysler- v. Soler Motors subishi contrary, appeals to Despite Lindo’s Inc., 614, 105 473 U.S. S.Ct. Plymouth, the Jones Amendment to Congress’s opinion L.Ed.2d a landmark “identify intention to signal its Act did commercial an international upholding agree as to which of claims any category statutory anti requiring U.S. agreement held unenforcea will be ments to arbitrate to be arbitrated abroad. The trust claims ble.” Mitsubishi up emphasized that its decision to Court repeal of the Jones at 3354. S.Ct. the fact that hardly warrants the turned on hold provision Act’s venue to over Congress sought arbitral apply inference that law would American requiring numerous cases arbi turn the ensuring thus the vindication proceeding, where the Act claims tration of Jones statutory remedies. of U.S. assuming, ar applies. Even Convention n. 3346. at 636-38 & (FELA’s provi § venue

guendo, Indeed, cautioned in footnote claims, sion) applies now to Jones that “in the language most forceful § 55 to indicate that nothing there and choice-of- event the choice-of-forum liability) (FELA’s limiting prohibition pro in tandem as a operated clauses intended Congress If had well. applies as party’s right pursue of a waiver spective clauses international arbitration to render ..., would have we statutory remedies cases, it could in Jones Act unenforceable condemning agree little hesitation Instead, leg explicitly have done so. against public policy.” Id. ment as Amendment history of the 2008 islative 19, 105 n. S.Ct. change was sweeping that no such reveals language, argues Lindo Tracking have like at all. Other courts intended this case that the arbitration “inapplicable § concluded that 55 is wise requiring that employment his agreements.” Har to seaman contract — Co., Inc., Act claim of he submit his federal Jones Sounding rington v. Atlantic Cir.2010) (2d (collecting Nicaragua arbitration in un- negligence to — cases), denied, -, cert. prospec- law—effectuates a der Bahamian (2011). 1054, 178 L.Ed.2d 876 statutory rights and tive waiver of his ma- public policy. The therefore violates in- Congress Because we conclude however, must holds, that Lindo jority to ar- subject-matter exceptions no tended raising to before claims, arbitration proceed Lindo’s first bitrability for Jones Oil, (2007). 30104(b) § See Pure 384 U.S. employer's thwemployer resides or the which 203-07, located,” 86 S.Ct. at 1395-97. 46 U.S.C. principal office is public policy because is not threshold argument issue here is whether agreement the New a arbitration under arbitration defense to can be rendered (“Convention”),1 void, the trea- inoperative York Convention “null and or of incapable ty international arbitration governing performed” on account being of its incon- agreements and awards. I dissent be- sistency public with the forum nation’s pol- I cause do believe that Lindo must so, icy. permitted If Lindo would to needlessly until wait after arbitration to prospective argument raise his waiver rather, public policy argument; raise his I initial agreement-enforcement stage. Convention, believe that New York its matter, meaning an initial of As implementing legislation, “null phrase strongly suggests and void” precedent Court authorize him to raise policy public is a defense to arbitra front, up argument proceeding before Texas, 491, tion. See v. Medellin to This arbitration. view finds additional (2008) 1346, 170 128 S.Ct. L.Ed.2d support understanding politi- in the (“The interpretation treaty, of a like the cal and prominent branches scholars at the statute, of a interpretation begins with its time of Convention’s ratification. I text.”). It is agree well-established that believe, contrary major- also to in the dicta contrary public policy to are charac ments ity opinion, legal See, in our system terized as “void.” precisely this case effectuates sort Inc., v. e.g., Entergy Operations, Oubre prospective statutory waiver 422, 431, 522 U.S. 118 S.Ct. has said it “would have J., (Breyer, L.Ed.2d concurring) in condemning little hesitation ... (defining something “void” as “without against public policy.” Although effect, say, legal like a contract terms these two views formed the basis of our contrary public which themselves are to Corp., decision Thomas Carnival D., policy”); Evans v. Jeff (11th Cir.2009), op- F.3d 1113 I take this 89 L.Ed.2d 747 portunity expound to on them. (Brennan, J., dissenting) (referring to the “well-established principle agree that an I. public ment which is contrary is observes, majority As the there are two unenforceable”). Indeed, void and Black’s judicial stages of Dictionary provides Law that “[a] contract pre-arbi- New York Convention: initial ab seriously is void initio if it offends law tration stage, where court determines public policy....” or Black’s Law Dictio whether refer a matter to arbitration (9th 2009) nary ed. (“agreement-enforcement stage”); and the understanding This common a con —that subsequent post-arbitration stage, where a provision tractual contrary court determines whether to enforce re- meaning is void—must inform the (“award-enforce- sulting arbitral award “null Convention’s clause. void” ment stage”). respect agree- With to the view is 11(3) strengthened This Article stage, ment-enforcement V(2)(b) Convention, provides requires the Convention court refer court that a need not enforce an arbitral arbitration, certain matters to “unless it if award such enforcement would finds that be con- [arbitration] void, null inoperative incapable trary policy. Although might one 11(3). Convention, being performed.” art. initially wonder whether the Convention’s 10, 1958, Recognition 1. United Nations Convention on June 21 U.S.T. 330 U.N.T.S. Awards, Foreign Enforcement Arbitral public policy excep- (observing inclusion of a broad. See id. at 155 that the express “appear[s] im- “null and void” clause to encom- stage at the award-enforcement tion pass range a broad of reasons for which an a omission of such ex- plies deliberate invalid”). agreement can be agreement-enforcement ception by stage, any implication dispelled such contrary, it good To the makes sense to proceedings of the New York Confer- V(2)(b)’s public policy look Article ex Medellin, 507, ence. See 552 U.S. II(3)’s ception interpreting when Article “the (considering negotiation S.Ct. 1346 Indeed, “null and void” clause. we did so Thomas,3 history treaty”). drafting and [a] Interpreting the Convention fact, pro- the drafters of Convention way congru makes sense because it that arbitra- assumption ceeded under ously links the stages two of enforcement. be addressed later agreements tion would example, For the First has Circuit ob Protocol, they in a thus separate were failing interpret served that to so the Con chiefly concerned with enforcement of require vention compel a court to awards, agreements arbitral arbi- dispute involving arbitration in a the sale Berg, van den The New trate. Albert Jan slaves, despite full knowing well that York Convention 1958: Towards a Uni- any resulting award un arbitral would be (1981). Interpretation Judicial public policy. enforceable as a matter of form days until the final of the It was “[n]ot Corp. Mitsubishi Motors Chrys Soler Inc., that it was “realized that such Conference” ler-Plymouth 164 n. 9 (1st separation seriously hamper could Cir.1983), part, part, rev’d in aff'd effectiveness of the new Convention.” Id. 87 L.Ed.2d (1985). consequently II was “drafted example may at 9. Article While time,” extreme, against absurdity in a race id. at and it it illustrates the inefficiency of closing days negoti- requiring inserted “in the court refer a was Born, apparent matter to arbitration where it is Gary B. International ations.”2 any from the face of the Commentary Arbitration: Commercial (2d 2001). subsequent award would be unenforceable Materials 159 ed. As a public policy. as a matter of “[ljittle result, despite importance, its attention, thought, drafting and less was Indeed, the two most authoritative II, id., drafting Article and the given” to scholarly interpreting sources the Conven- history does “not reveal discussion adoption tion around the time of its —both regarding words” the “null th[e] of which relied on have been Su- Berg, supra, void” clause. Van den at 154. preme Court—have taken this view. It would therefore be mistake assume First, Haight, a member of the Inter- G.W. express that the inclusion of a delegation national of Commerce Chamber V(2)(b) implies exception Conference, Article contempora- to the New York exception encompassed neously such an is not what remains prepared the most 11(3), deliberately comprehensive summary proeeed- which was left Article 17; treaty’s Joseph 2. Hence the tide—Convention on the 24 & n. see R. Brubaker & Mi- Foreign Twenty-Five Recognition Daly, and Enforcement of Ar- chael P. Years the “Pro- conspicuous spective bitral Awards—and its failure Waiver” Doctrine in International agreements. Dispute reference arbitration Mitsubishi’s Footnote Resolution: Circuit, Nineteen Comes to in the Eleventh Life (2010) (ob- V(2)(b), only L.Rev. 3. While we cited we held 64 U. Miami that, serving stage despite Thomas's citation to Arti- of enforcement that the the initial 11(3) V(2)(b), appears cle "Article ... to have was "null and void” on decision”). Thomas, policy grounds. 573 F.3d at 1120— influenced court’s pre- attached a on the Johnson memorandum Haight, Convention ings. G.W. State, Department adopt- of Foreign pared by the Recognition of Enforcement that “null void” Summary Analysis ing Quigley’s view Arbitral Awards: of V(2)’s excep- incorporated Nations clause Article Record United Conference of 1958). delega- his own Despite to the enforcement of arbitral (May/June tions arbitration, Haight E, Cong, 2d preference tion’s awards. S. Exec. Doc. 90th may that “courts expressed view (“Paragraph Sess. 19 3 [of ‘null void’ be allowed some clause] provides] [the ... that a court in a con- II] latitude; an they [arbitration] find tracting country, when seized of an action if this it agreement trigger clause] [to parties of which the have made respect policy of the the law or the offends meaning within the of Arti- agreement at 28. forum.” Id. shall, II, of upon request cle one to arbitration un- parties, parties refer the Second, law review article a seminal void, agreement it null and less finds shortly in the Yale Law Journal published inoperative, incapable being per- of into force after the Convention entered it again, appears formed. Here “Article reached the same conclusion: V, exceptions provided para- in Article [V(2)(b) the forum to refuse allows State ] enforcement graph respect with recognition of an award if the And, awards, apply.”). would this of and enforcement of the award would respect, Department anticipated It the State contrary public policy. to its can V(2)(b)’s expected public policy excep- the forum State will similar- that Article ... ly parties refuse to order the to arbi- give appli- tion “would the courts to which public policy tration where its renders the in re- cation is made considerable latitude void, agreement inopera- arbitral ‘null and fusing enforcement.” Id. at 21. I find it ” incapable being performed.’ tive or political highly significant branch- Quigley, Leonard Accession V. appar- es ratified the Convention with the States to the Nations Con- United United understanding ent that the enforcement Recognition vention on the agreements international arbitration Enforce- Awards, Foreign ment Arbitral 70 Yale expense not come at the of all other (1961).4 1049,1064 n. 71 L.J. Abbott, public policies.5 See Abbott U.S.-,-, Significantly, interpretation (2010) (“It L.Ed.2d 789 is well settled

“null and void” is also that of the clause interpretation the Executive Branch’s of a political branches the United States. treaty great weight.”) (quota- is entitled to submitting the to the When Convention omitted). Senate for ratification in President tion marks and citation Forum?, expressed Through 4. Other commentators have J. actions Choice 69 Am. See, e.g., Barry, Appli- view as well. J. (stating Robert L. Con- Int’l that the Policy Exception cation Public to the "permit[s] vention the courts of one state to Foreign Arbitral Awards Under Enforcement of refuse to enforce an to arbitrate Proposal, the New York Convention: A Modest contrary which is void because to the [it is] (1978) (“Article L.Q. Temp. 836 n. 16 state”). public policy of that Convention, relating II of the New York to the obligation parties of a court refer to arbi- Nothing legislative history in the text or tration unless it finds that the said implementing legislation the Convention's is, void, effect, is null and suggests contrary congressional understand- exception obligation to the of the courts of a 206; S.Rep. § ing. U.S.C. No. 91-702 See 9 contracting parties state to refer the to arbi- 91-1181, (1970); Rep. H. No. tration.”) omitted); (quotation marks Com- (1970). U.S.C.C.A.N. 3601 ment, Certainty Greater in International Trans-

1291 waiver, the suggestion, statutory Court Contrary majority’s to the Alberto-Culver, argument “premature.” Id. at 417 U.S. found this neither Scherk 540, Significantly, 115 2322. howev 506, nor Mitsubishi S.Ct. 94 2449 S.Ct. er, repeatedly emphasized the Court understanding of the Conven- rejected this Indeed, the critical fact that the its decision turned on Maj. op. at 1283. tion. See jurisdiction court had retained declined to the district specifically in Scherk Court case, guaranteeing thus that the the Conven- over the the issue of whether “reach[ ] subsequent oppor would have a petitioner its own force that require ... would tion defense at tunity public policy in to raise his to arbitrate be enforced agreement the 532, stage. the award-enforcement Id. at 417 at 520 n. present case----” 540-41, 542, 2322; at 115 15, that the 115 S.Ct. see id. telling 2449. And it is 94 S.Ct. (O’Connor, J., concurring in the dispute the S.Ct. 2322 majority in Scherk did not 11(3) judgment) (reiterating majority’s in- that the that Article dissent’s assertion on the district court’s re holding a to arbitra- turned public policy cludes as defense 10, 534, jurisdiction). tention of And the Court at 530 & n. 94 S.Ct. 2449 tion. Id. J., made clear that there no dissenting). “[w]ere [such] Nor did the (Douglas, opportunity for review” at the subsequent in Mitsubishi. reject proposition Court stage, award-enforcement “and were we implication clear contrary, To persuaded that ‘the choice-of-forum and a defense public policy 19 is that footnote operated clauses tandem choice-of-law agreement-enforce- at the can be raised Mitsubishi, party’s rights of a prospective at as waiver stage. ment See (“[I]n remedies, statutory we would pursue event 3346 n. 105 S.Ct. condemning have little hesitation choice-of-law choice-of-forum and ” against public policy.’ as agreement a prospec- in tandem as operated clauses (quoting 115 S.Ct. 2322 right pursue party’s of a tive waiver 3346) ..., n. 105 S.Ct. have 473 U.S. we would statutory remedies omitted). Thus, supports (ellipsis Vimar condemning agree- little hesitation public policy that a defense against public proposition award] ment [not doctrine prospective on the waiver based policy.”) agreement- at the initial may be raised confirmed Vimar there will not be stage when Sky y Reaseguros, S.A. v. Seguros M/V any subsequent opportunity for review. 2322, 132 Reefer, 515 U.S. case, prospective In this Lindo’s waiver that a L.Ed.2d 462 argument premature is not because prospective waiver based on the defense jurisdiction. court did not retain be raised at the district may sometimes doctrine Instead, a final com- the court issued order stage. agreement-enforcement arbitration, Lindo’s dismissing pelling an international upheld the Court Thus, closing the case. complaint, claim requiring a U.S. Vimar, guarantee there is no foreign law. unlike abroad under be arbitrated opportunity an Although Lindo will be afforded 2322. Id. at prospective argument waiver raise his stage at the initial argued petitioner stage.6 As a re- award-enforcement prospective effectuated (authorizing §§ U.S.C. 10-11 award. that Lindo could majority counters 6. The Cf. "vacate," "modify,” and "correct” following motions to bring separate action Thus, award). But, it is no means Chapter § an arbitral unlike under 9 U.S.C. Act, rely § only § that Lindo could on 207 to attack clear Federal Arbitration confirm) (rather arbitral than adverse an arbitral an action to "confirm" authorizes agree- only authority upon initial clause suit, it at the he raise stage.7 ment-enforcement holding could have been based. Court’s Daly, supra See Brubaker & note authority all of the Notwithstanding (“[T]he provides null and void clause above, our majority reads discussed Cruises, v. 396 only possible decision Bautista Star basis under the New (11th Cir.2005), in a manner F.3d 1289 York apply Convention for courts to raising from his precludes that Lindo prospective waiver doctrine and refuse to agreement-en policy defense at the public arbitrate.”). compel parties to stage. In that this Court forcement Moreover, by suggesting only that cer- (without analysis) that the “Con stated tain domestic apply defenses to arbitration ‘must be in null and void clause vention’s context, only majority’s those in the encompass [breach international terpreted fraud, as mis defenses] contract reading key provi- of Bautista overlooks a —such duress, can take, ap and waiver—that be legislation implementing sion of the ” neutrally on an international scale.’ plied legislation, as Convention. That codified Sphere (quoting Id. at 1302 DiMercurio 2 Act Chapter of the Federal Arbitration (1st PLC, Drake Ins. Cir. (“FAA”), a provid- contains residual clause Bautista, 2000)); see FAA, that ing Chapter governing of the (“Domestic defenses to arbitration are arbitration generally, “applies to actions a transferrable Convention case proceedings brought [Chapter only they scope if fit within limited th[is] [Chapter to the extent that is not in 2] 1] ”). majority asserts defenses.... [Chapter conflict with or the 2] Convention that, “null limiting scope so of the ratified United States.” clause, effectively and void” Bautista turn, § Chapter provides U.S.C. 208. national as a de eliminated agreements are enforce- fense. upon grounds able “save such as exist at However, way, construing Bautista for the equity law or revocation of does, majority it in places as the conflict § contract.” 9 2. As discussed U.S.C. precedent. with Preclud- Court above, public policy constitutes such a ing public policy being a defense from ever ground. nothing And because there is agreement-enforcement stage at the raised Chapter or the Convention that excludes holding conflicts VimaPs that such a with public policy as a defense to international stage defense at that raised when arbitration, 206; § see 9 U.S.C. Conven- subsequent opportunity there is no for re- 11(3), tion, operates art. clause residual Although specifically view. Vimar did not clause, discuss the “null and void” to ensure its inclusion.

7. Further would review, nation’s status as a fellow which did not even mention such an edent is case law from contemplated Moreover, Convention. award "entitled to considerable always even opportunity. bolstering under the the award-enforcement though Abbott, cases a subsequent opportunity in which there would not the statement in Vimar— 560 U.S. at majority’s logic, This is such weight” England, signatory § 207— given -, which is plainly to the stage. there prec- case. Accordingly, the arbitration clause would be trary notwithstanding any expression to the con- provision of EU law which does not effect to the arbitrate is void.... arbitration clause omitted); ^[2009] 'null and void’ and S.Ct. at 1993 on the Q.B. see Accentuate mandatory provisions ¶¶ part (quotation law, purports 'inoperative' 87-89 give contracting parties.... [T]his then the effect to marks and citation Ltd. v. (Eng.) court apply foreign ("Where Asigra [must] mandatory of EU Inc., law, give Quigley’s and Leonard exacerbating the conflict be- dum Yale Law Finally, article, id., majority’s reading that, of Bautista tween the see two sources Journal authority is that Bau- of the above above, and all as discussed conclude Article analysis. any reasoning tista is devoid II(3)’s “null and void” clause includes a the “null and void” limiting scope In public policy exception arbitration. of neu- capable that are clause to defenses effectively excluding application, Bautista tral international “null scope from the of the and void” quotes the First Circuit’s decision simply clause, majority’s reading of Bautista as if this was a settled in DiMercurio wholly fails to account for the text of the DiMercurio, however, of law. proposition V(2)(b) clause, Convention, Ragno, v. Ceramiche traces back to Ledee clause in the im- the residual Convention’s (1st Cir.1982) 184, F.2d 187 684 plementing legislation, contrary views Bros., Assocs., I.T.A.D. Inc. v. Podar 636 by political held branches at ratifica- (4th Cir.1981), 75, decisions two tion, scholars, prominent and even the Su- both Mitsubishi and Vimar. pre-date preme great itself. Based on the time, and Fourth at that the First Even weight authority, of this I believe that the of the “null and interpretation Circuit’s “null void” clause encompasses pub- hardly gospel. See clause was void” may lic policy defense be raised at the Compagnia Francese Rhone Mediterranee initial agreement-enforcement stage. E v. Di Assicurazioni Riassicurazoni Cir.1983) (3d Lauro, (ap- 712 F.2d II. I.T.A.D., concluding Ledee and but proving may also be rendered agreement Although majority that an holds that Lindo “ ... it contravenes ‘null and void’ when not raise his defense at state”) policies fundamental of the forum stage, gratuitously goes this initial it on to (citation omitted). good And this is for that the arbitration does assert provided only Those decisions reason. Maj. public policy. op. not violate at 1283— cursory analysis of the Convention and say, Needless to this discussion is in following relied on the dicta simply unnecessary wholly majority’s to the reso- Convention, goal Scherk: “[T]he plainly lution of this case and is dicta. principal purpose underlying American See, Crosby, v. e.g., Schwab 451 F.3d it, adoption implementation of was Cir.2006) (“[Tjhat (11th which is not encourage recognition and enforce- necessary to the decision of a case is dic- agree- of commercial arbitration ment ta.”). Nonetheless, explain my I write and to ments international contracts contrary application view that a faithful agreements unify the standards prospective Court’s waiver signa- are ... in the to arbitrate observed compels the conclusion that doctrine n. tory countries.” 417 U.S. at 520 in this case contra- generic 2449. This rather statement public policy. venes strong pre- in the purpose is reflected outset, at the explained As But it sumption in favor of enforcement. the prospective Court articulated waiver that, hardly signifies by ratifying the Con- in Mitsubishi in order to ensure doctrine vention, sought to re- the United States preservation statutory rights of federal agree- courts to enforce arbitration quire foreign proceedings. The Court arbitral strong that contravene a U.S. ments in foot- repeatedly emphasized point Indeed, telling it is that this dicta policy. surrounding 19 and the text. See note supported by a citation to the Scherk is at 637 n. 105 S.Ct. ratification memoran- Department’s State distinguished. to be litigant’s “right pur- edent needed (stressing statutory remedies” in the arbitral Lipcon Lloyd’s, sue See Underwriters id. at proceeding); London, 1285, 1293-94, 1298-99 ability to “effec- (stressing litigant’s Cir.1998).8 (11th statutory cause of tively ... vindicate its Moreover, discounting the Supreme forum”); id. at action the arbitral prospective waiver doctrine has Court’s (suggesting foreign that the 105 S.Ct. 3346 so, ma- implications. doing serious that the proceeding arbitral must “ensure jority effectively transforms the enforce- in the legitimate interest agree- ment of international arbitration addressed”); antitrust laws has been top public policy. ments into the As proceeding that the arbitral (suggesting id. above, nothing sug- discussed there is “cognizance of the antitrust must take them”). in- actually gest political And branches ever decide[ ] claims and to uphold agree- the Court’s decision prospective tended such a result. And the very in that case turned on the fact ment operates waiver doctrine to avoid that re- law, law, foreign that American that the ensuring sult enforcement of proceeding. id. apply the arbitral See will not agreements such be elevated over 19, n. 105 at 636-38 & S.Ct. 3346. every public policy including other U.S. — policies dating very founding back to the majority The asserts that footnote 19 of country. “undisputably Maj. exemplifies Mitsubishi dicta.” Lindo’s case op. point. 1278. This cannot be the as this footnote was critical to the Court’s days Republic, From the of the earliest reasoning and the outcome of case. a “great public policy there has been Merely did not find a because preserving important class [seamen an] prospective waiver there does not make of citizens for the commercial service and language forming part of the Court’s — maritime defence of the nation.” Harden Indeed, reasoning core it is re —dicta. (No. Gordon, 480, 6,047) v. 11 F.Cas. 483

vealing respect in this that the Supreme (C.C.D.Me.1823) (No. J.). 6,047) (Story, prospective Court has reaffirmed the waiv Indeed, always have re “[s]eamen been Mitsubishi, er doctrine twice since and has garded admiralty, as wards of the recently done so as as 2009. See Penn 14 rights, wrongs, injuries their a special 247, -, Pyett, Plaza v. 556 LLC U.S. subject admiralty jurisdiction. of the 1456, 1474, 129 S.Ct. 173 L.Ed.2d 398 Congress, as evidenced its (2009) (“[A] federally substantive waiver of legislation, has been to deal with them as a rights up civil protected will not be Bainbridge favored v. class.” Merchants’ ....”) Mitsubishi, (citing held 473 U.S. Co., 278, 282, Transp. & Miners’ 287 U.S. Vimar, 19, 3346); 637 & n. 105 S.Ct. 515 (1932) (citation 159, 53 77 S.Ct. L.Ed. 302 540, 115 (quoting U.S. S.Ct. 2322 with omitted). Lin- Consequently, seamen like approval prospective language waiver traditionally Mitsubishi, special do have been afforded 19, 473 U.S. at 637 n. 105 Int'l, 3346). legal McDermott Inc. remedies. See previously S.Ct. And this Court has Wilander, 337, 354, v. 498 111 S.Ct. characterized footnote 19 of Mitsubishi (1991). dicta, 807, 112 controlling prec not as but rather as L.Ed.2d 866 Robertson, ted); recurring Corp. 8. Even if such a forceful and doc- McDonald’s 147 F.3d dicta, 1301, Cir.1998); (11th precedent trine could be considered 1315 Peterson v. BMI our (11th prohibits “lightly cast[ing] Refractories, us from 124 F.3d 1392 n. 4 [it] aside.” Schwab, (citation Cir.1997). 451 F.3d 1325-26 omit- (11th Cir.1988) (citation omitted). afforded to This so- special remedies Among Act, standard, provides “featherweight” called causation is the Jones seamen (citation omitted), negligence dramatically of action statutory cause id. increas em injured in the course of recovery, “seaman thus es the likelihood of reflect Congress § 30104. 46 U.S.C. ployment.” strong public policy deeply ing the embed “provide liberal re this statute enacted history. ded our nation’s seamen, Dredg Kernan v. Am. covery” for Enforcing the arbitration Co., 426, 432, 78 S.Ct. ing directly this case contravenes that (1958), assuage in order to L.Ed.2d 382 agreement unambiguously re- policy. The perils to the “exposure their hazardous Act claim quires Lindo to submit his Jones Latsis, Chandris, Inc. v. the sea.” But to arbitration under Bahamian law. 347, 354, 132 L.Ed.2d there is no Jones Act the Bahamas. (citation quotation marks featherweight Instead of a relaxed or cau- omitted); Betty accord Crimson Yachts v. standard, requires sation Bahamian law Yacht, II 874 n. 5 Lyn Motor prove seaman to a direct link causal be- — (11th denied, Cir.), U.S.-, cert. employer’s negligence tween the (2010). also 178 L.Ed.2d See injury, stringent a much more standard. Robertson, Approach A David New W. The result is that the arbitral tribunal will Status, 64 Tex. Determining Seaman cognizance neither “take (explaining that the L.Rev. “actually of action” nor cause decide” range the sea ... include the full “perils of Act, making claim under the Jones water, dangers deep associated with prospect recovery substantially more weather, currents, wind and tides unlikely. difficult and distances from predators, great ocean 19, at 637-38 & n. 105 U.S. S.Ct. 3346. isolation, shore, inaccessibility relative short, agreement results in the eviscer- succor”). facilities for aid shore-side ation, vindication, not the of Lindo’s statu- Act purpose, To achieve that the Jones Act tory right under the Jones to establish legal “heightened protec affords seamen featherweight.9 a mere causation Chandris, 354, tions,” 515 115 S.Ct. employed reasoning We this same 2172, including right to “recover ... case, In that we considered a Thomas. showing of cause proximate with a lower requiring contractual a provision cruise- required non-admiralty in a than would be statutory ship employee to arbitrate his Inc., Towing, Mac Dempsey case.” v. Wage claim Act in under the Seaman’s (11th Cir.1989). Rather F.2d Philippines under Panamanian law. that em showing, example, than for Thomas, 573 F.3d at 1115-20 & n. 9. Like negligence was a substantial fac ployer’s Act, Wage the Jones the Seaman’s injury, may causing tor “causation remedies, special legal affords seamen if found the Jones Act] [under namely right damages to obtain treble played any acts or omissions defendant’s wage payments. for late See v. small, in bringing no matter part, [h]ow Griffin Inc., Contractors, injury.” Oceanic about the McClow Warrior & Co., 73 L.Ed.2d 973 Navigation Gulf Moreover, majority speculates featherweight 9. The that Lindo ulti- standard. the ma- troubling prevail jority’s speculation in this mately under Bahamian That is case law. however, because, above, guar- explained no unlikely possibility, does not lessen as there is a agreement’s antee that Lindo will be afforded subse- evisceration right, right recovery, quent opportunity for review at the award- which is not a but stage. right a causation under a rather to establish because, though English law was (“[T]he is to even of the statute purpose evident plaintiffs favorable” to the American “less wages of seamen’s prompt payment secure laws, provided it “ade- than U.S. securities the harsh them from protect and thus to quate allowing “polic[ies] remedies” arbitrary unscrupu- consequences underlying securities law which, United States employers, to of their lous action ” (el- Lipcon, vindicated.... See [to] class, exposed.”) they peculiarly are at 1297-99. marks, and citation omit- lipsis, quotation ted). of this importance noted the We far too majority Lipcon The reads Thomas, 3,n. F.3d at 1115 right in broadly. suggests Lipcon It that stands very mechanism which it constitutes the sweeping proposition for the that inter- sought to enforce the statute’s Congress national does not violate Griffin, 458 U.S. purpose. See for- policy merely applicable because “Congress has (explaining S.Ct. 3245 eign law is less favorable than U.S. law. purpose statute’s] [the chosen secure however, reading, Such broad potentially punitive through the use in direct conflict place Lipcon with designed negligent to deter sanctions prospective Court’s waiver doc- arbitrary delays payment”). Because Lipcon trine. In order to reconcile with that Panamanian law implicitly we found doctrine, necessary emphasize it is damages for late did not authorize treble finding English rem- Lipcon’s instead payments,10we held that the arbitra- wage edies, favorable, being despite less none- prospective tion effectuated theless allowed for the “vindication]” statutory rights waiver Thomas’s underlying the federal policies securi- Act, Wage in violation of the Seaman’s Unsurprisingly, ties law. in this general public policy same issue finding particular was tied to the facts case. id. at 1123-24. See case, and circumstances of the see id. at claims, (relying on particular 1297-99 directly almost Although Thomas is defendants, law), provisions English point closely follows the yielding holding thus a narrow with limited doctrine, prospective Court’s waiver prospective applicability. heavily on majority here relies our decision In that non-arbitration Lipcon. that, contrary ma- upshot to the agree- enforced an international assertion, jority’s Thomas does not conflict statutory requiring ment U.S. securities Lipcon, Lipcon with does not control in English to be resolved courts claims thing, Lipcon this case. For one did not English Bre- Applying law. agreement, even involve an arbitration M/S Co., men Zapata v. U.S. much less the New York Convention. Off-Shore (1972)— Moreover, 32 L.Ed.2d Thomas and this case involve which established the framework for evalu- fundamentally different facts and circum- forum-selection ating Lipcon international claus- stances than federal —different concluded, alia, statutes, public policy inter these consider- es—we different ations, choice clauses did not violate and different choice clauses.11 of, Although specifically England, a Thomas did not dis- the laws well-known and devel- 10. law, implication the clear judicial system. Daly, cuss Panamanian oped See Brubaker & from our decision was that it did not author- (''[M]any supra note courts damages wage payments. ize treble for late analysis the Bremen in a def- [conduct ] often erential manner if forum-selection clause example, contrary 11. For to this case and litigation calls for in the courts of a well- Thomas, Lipcon in the choice clauses called developed judicial system.”). known or in, dispute for the to be resolved and under Thus, narrow, fact-specific pub- pels the conclusion that Lipcon’s holding hardly precluded con- lic-policy Lindo’s contract effectuates in Thomas or this where trary result precisely statutory the sort of prospective wholly foreign applied law to be Supreme waiver that Court “would critical vitiate —not vindicate—a have little in condemning hesitation right strong deeply- and contravene a Mitsubishi, against public policy.” policy. rooted U.S. at 637 n. 105 S.Ct. 3346. Accord- Finally, Lipcon ingly, it bears mention that I would hold the arbitration meaningfully distinguish itself did not agreement in “null Lindo’s contract is waiver doc- prospective Court’s void” and thus unenforceable. Lipcon suggest- first trine. The Court prospective

ed that waiver doctrine applicable not Mitsubishi in-

was because claims, antitrust securities

volved course,

claims. Id. at 1294. Of Mitsubi- articulation of the doctrine did not

shi’s

turn on the fact that antitrust claims were issue; subsequent Court’s America, UNITED STATES of

reiteration of the doctrine Vimar —in- Plaintiff-Appellant, volving brought Carriage claims under the Act, a completely of Goods Sea differ- Hoffman, Cronin, Andrea G. Sean Paul ent federal statute —should have made Interested-Parties-Appellants, however, cite Lipcon, that clear. did not Vimar, only years three earlier. decided in Lipcon The Court also relied on Mit- SHAYGAN, Defendant-Appellee. Ali statement that “concerns of in-

subishi’s No. 09-12129. comity, respect capaci- ternational for the tribunals, foreign ties of and transnational Appeals, United States Court of sensitivity to of the interna- the need Eleventh Circuit. system predictability tional commercial disputes” the resolution of counsel Aug. enforcing favor of international arbitration agreements. (quoting 3346). Again,

U.S. at these admittedly concerns account for the

presumption in favor of enforcement. But presumption overcome Su-

preme accompanying Court’s articulation prospective waiver doctrine. sum, Supreme I believe Court

meant what it said in Mitsubishi. however,

majority, gives prospective

Court’s waiver doctrine short simply

shrift. I would take the word, required its as we are

do, apply the doctrine to the case an application

before us. And such com-

Case Details

Case Name: Lindo v. NCL (Bahamas), Ltd.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 29, 2011

Citation: 652 F.3d 1257

Docket Number: 10-10367

Court Abbreviation: 11th Cir.