217 Conn. 182 | Conn. | 1991
The plaintiff, PaineWebber, Inc. (Paine-
Webber), appeals from the judgment of the trial court (1) denying its motion for a permanent injunc
The following facts, and the procedural thicket to which they led, are undisputed. The Charts were customers of PaineWebber, a securities trader. The parties entered into three agreements, all on preprinted forms supplied by PaineWebber. One agreement, dated October 30, 1985, entitled “Client’s Agreement” (client agreement), defined their relationship as customer and securities trader. Paragraph 17 of this agreement provided in pertinent part that the “agreement and its enforcement shall be construed and governed by the laws of the State of New York . . . ,”
Subsequently, the Charts filed a demand for arbitration with the AAA in Hartford. PaineWebber responded by filing this action in the Superior Court to enjoin the arbitration, claiming that any arbitration by the AAA was unauthorized. The trial court, Fracasse, J., issued a temporary restraining order enjoining the arbitration..
Ultimately, the Charts moved to dissolve the restraining order and PaineWebber moved for a permanent injunction against arbitration by the AAA. The parties submitted these motions to the court, Schaller, J., on the basis of a joint appendix of documents and briefs.
The trial court, without reaching the merits of the parties’ legal claims regarding the scope of their arbitration agreements, granted the Charts’ motion to dissolve the temporary restraining order and denied PaineWebber’s motion for a permanent injunction. The sole basis of the court’s decision was that PaineWebber had not established irreparable harm. PaineWebber appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.
PaineWebber claims that the trial court improperly denied its motion for a permanent injunction. It argues that arbitration before the AAA is not permitted under the parties’ agreements because: (1) the agreement limited the arbitration fora to one of the three associations listed therein, namely, the NYSE, the Amex or the NASD, to the exclusion of the AAA; (2) as a matter of policy, arbitration regarding securities disputes should be so limited because those three entities are so-called self-regulating organizations that are extensively regulated by the federal Securities and Exchange Commission in order to ensure the adequacy of their arbitration procedures; and (3) contrary to the Charts’ assertion, the constitution and rules of the Amex do not provide for arbitration of securities disputes by the AAA.
It is not necessary to consider all of the various claims of PaineWebber or the Charts’ responses thereto, because we reach the merits of the controversy between the parties regarding the scope of their arbitration agreements, and we conclude that the parties’ agreements provide for arbitration before the AAA as a matter of law. We therefore affirm the judgment on a ground different from that relied on by the trial court. Cheshire v. McKenney, 182 Conn. 253, 261, 438 A.2d 88 (1980).
We first consider our scope of review of the agreements. The construction of an arbitration agreement presents a question of the intention of the parties. See A. Dubrmil & Sons, Inc. v. Lisbon, 215 Conn. 604, 608,
In Cowen & Co., the court was confronted with the precise issue posed by this case. The plaintiff securities trader sought to stay an arbitration by the AAA that had been elected by the defendant, the plaintiffs customer. The agreements between the parties provided for “arbitration in ‘accordance with the rules, then in effect’ of the New York Stock Exchange, or the American Stock Exchange or the National Association of Securities Dealers.” Id., 320-21. The plaintiff claimed that the defendant was limited to arbitration before the three named entities, and the defendant, relying on an open Amex window, claimed that he was
The Cowen & Co. court rejected the plaintiff’s reliance on several federal cases for the proposition that the parties’ agreements overrode the Amex window and limited arbitration to one of the three self-regulating organizations. See Merrill Lynch,0 Pierce, Fenner & Smith v. Georgiadis, 903 F.2d 109 (2d Cir. 1990); PaineWebber, Inc. v. Pitchford, 721 F. Sup. 542 (S.D.N.Y. 1989), aff’d sub nom. PaineWebber, Inc. v. Rutherford, 903 F.2d 106 (2d Cir. 1990); Piltch v. Merrill Lynch, Pierce, Fenner & Smith, 714 F. Sup. 537 (D.D.C. 1989). The court read those cases as illustrating that the securities traders could have specifically limited the arbitration fora to one of the three named organizations but had not done so, and the court stated that since the term “rules” was not defined or limited by the agreements the customers were entitled to rely on the Amex window. Cowen & Co. v. Anderson, supra, 323. Similarly, the court declined to follow other federal cases that construed customer agreements as closing the Amex window; see Hybert v. Shearson Lehman/American Express, Inc., United States District Court, N.D. Illinois, Docket No. 84C10327 (June 8, 1989); Bear Steams & Co. v. N. H. Karol & Associates, 728 F. Sup. 499, 500, 503-504 (N.D. Ill. 1989); PaineWebber, Inc. v. Astrella, United States District Court, New Jersey, Docket No. 89-2268 (September 6, 1989); but instead rested its decision on the clear language of the contract and, assuming an ambiguity, on
We conclude that Cowen & Co. v. Anderson, supra, controls this case. We first note that the three agreements of the parties must be read together because they interlock and overlap. They all contained essentially the same arbitration clause. See footnotes 4 and 6, supra. Furthermore, both of the client option agreements defined their relationship to the client agreement as supplementing the client agreement and not diminishing any of the customer’s rights thereunder. See footnote 5, supra.
Thus, the choice of law provision of the clients agreement must be read as applying to all transactions between the parties, and to the construction and enforcement of their agreements, including the arbitration clauses. That choice of law provision stated that those agreements and their enforcement “shall be construed and governed by the laws of the State of New York . . . .” Cowen & Co. expresses in unmistakably clear terms the New York law that governs the interpretation of the parties’ arbitration agreements.
The arbitration clauses of the agreements in this case are essentially identical to those in Cowen & Co. We therefore must read them as having the same meaning as those in that case. As in Cowen & Co., furthermore, any ambiguity must be resolved against PaineWebber, which drafted the agreements. Moreover, the applicable provisions of the Amex constitu
The judgment is affirmed.
In this opinion the other justices concurred.
The defendants are Alex Charts and Helena Charts, and the named defendant, the American Arbitration Association (AAA). The AAA has taken a passive role in this litigation, both in the trial court and on appeal, since the actual dispute is between PaineWebber and the Charts. We therefore consider the Charts as the defendants.
After oral argument in this court, PaineWebber withdrew a third ground of appeal, namely, that the trial court abused its discretion in awarding certain sanctions against the plaintiff for its failure to attend a deposition that had been noticed.
Paragraph 17 of the client agreement provided: “Jurisdiction. All transactions made for the account(s) of the undersigned shall be governed by the terms of this agreement. This agreement and its enforcement shall be construed and governed by the laws of the State of New York, and shall be binding upon the heirs, executors, administrators, successors, and assigns of the undersigned.”
Paragraph 19 of the client agreement provided: “Arbitration. Any controversy between us arising out of or relating to this contract, breach thereof, or any accounts) maintained with you (except any claim for relief by a public customer for which a remedy may exist pursuant to an expressed or implied right of action under the federal securities laws), shall be settled by arbitration in accordance with the rules in effect of either the New York Stock Exchange, Inc., American Stock Exchange, Inc., National Association of Securities Dealers, Inc., or where appropriate, the Chicago Board Options Exchange or National Futures Association, as the undersigned may elect. The undersigned authorizes you to make such election, if such election is not made by the undersigned by registered mail addressed to you at your main office -within fifteen (15) days after receipt of notification requesting such election. The award of the arbitrators, or a majority of them, shall be final and judgment on the award may be entered in any court having jurisdiction.” It is clear from the context of the agreement that “the undersigned” refers to the Charts and “you” refers to PaineWebber.
Paragraph 17 of both client option agreements provided: “Relationship to Client Agreement. This Agreement supplements where applicable the Client’s Agreement entered into between us and will not diminish any of your rights under said Agreement. In the event of any conflict between the terms of this Agreement and the terms of the Client’s Agreement, the provisions of this Agreement shall prevail.”
Paragraph 18 of the August 25,1987 client option agreement provided: “Arbitration. It is understood that the following agreement to arbitrate does not constitute a waiver of the right to seek a judicial forum where such a waiver would be void under the federal securities laws. The undersigned agrees, and by carrying an accounts) for the undersigned you agree, that except as inconsistent with the foregoing sentence, all controversies
Ultimately, the federal action was dismissed by the court upon the notice to the court by the Charts that “[a]n arbitration is now pending concerning the claims made in this matter.”
The joint appendix included copies of the three agreements between the parties, various letters among their attorneys and other persons, pertinent court and arbitration documents, transcripts of certain depositions of officials of the American Stock Exchange, Inc., and of PaineWebber, and pertinent parts of the constitution of the American Stock Exchange, Inc.
Neither PaineWebber nor the Charts have at any time suggested that either the Chicago Board Options Exchange or the National Futures Association was an appropriate forum for arbitration of their dispute.
PaineWebber also reasserts its argument in the trial court that the Charts waived their right to choose the arbitration forum. The basis of this claim is that the Charts did not make a forum election within fifteen days
Waiver is a question of fact for the trial court in the first instance, subject to limited appellate review, unless the facts establish waiver as a matter of law. The record presented does not establish waiver as a matter of law, and the trial court made no explicit finding regarding waiver. It is possible to read the decision of the trial court as either having implicitly rejected or having bypassed PaineWebber’s claim of waiver, since the court decided that PaineWebber had not established irreparable harm. Faced with this ambiguity, it was PaineWebber’s responsibility to request the trial court to articulate its decision further and to seek an explicit finding of waiver vel non that would then constitute an adequate record reviewable on appeal. PaineWebber’s failure to do so precludes review of this claim on appeal.
More specifically, PaineWebber argues that: (1) compelling it to go through arbitration before a body that lacks the power to hear the matter constitutes irreparable harm as a matter of law; (2) such harm is not legally required for the issuance of a permanent injunction; (3) the dispute between the parties is governed by the Federal Arbitration Act; 9 U.S.C. § 2 et seq.; under which a permanent injunction against an unauthorized arbitration may be granted without an additional showing of harm; (4) a state requirement of such an additional showing is preempted by the federal act; (5) if the Connecticut arbitration statutes; General Statutes § 52-408 et seq.; govern, they do not require a showing of irreparable harm; (6) this case, although nominally one for a permanent injunction, essentially is one for specific performance of a choice of forum contractual provision; and (7) denial of injunctive relief will waste judicial resources, since an award by the AAA will have to be vacated on appeal.
PaineWebber purports to claim on appeal, solely by way of a one sentence footnote in its brief, that “even if arbitration before the AAA is somehow found to be appropriate, the AMEX Window contemplates arbitration
Paragraph 17 of the client option agreements also provided that “[i]n the event of any conflict between the terms of this Agreement and the terms of the Client’s Agreement, the provisions of this Agreement shall prevail.” We can perceive no conflict, however, between the client option agreements and the client’s agreement with respect to the arbitration clauses.
As indicated in Cowen & Co. v. Anderson, 76 N.Y.2d 318, 558 N.E.2d 27, 559 N.Y.S.2d 225 (1990), the record in this case indicates that Article I, § 3 (a) of the Amex constitution provides: “The term ‘rules of the Exchange’ shall include the Constitution and all rules adopted pursuant thereto.”