It is so intersting decesion made by 11circut .I would like to know more about this case whether Carnival corporation is appealing to higher Supreme court .If anyone know more about this case will be appreciater

Thanks all of you
Roy Robert

The real reason is that the opinion’s defects in performance are so transparent, for reasons everyone knows: The court says that it’s “undisputed that US law will never be applied,” because the contract “explicitly” so provided. But of course that was equally the case in Mitsubishi. There is no concession by the plaintiff in Thomas that US law will apply—but it’s quite conceivable, as the ICC suggested in Mitsubishi, that arbitrators would ultimately prefer not to interpret the choice-of-law clause as encompassing US mandatory law. And for the court to say that the “arbitrator is bound to effectuate the intentions of the parties irrespective of any public policy considerations,” is obviously to get things completely backwards—because the implicit assumption (impermissible, as we all know) is that it is the court, not the arbitral tribunal, which should do the work of interpretation with respect to what the parties” “intent” in fact was.

One thing I really didn’t understand is this: The court says that if the arbitrators, following Panama law, wind up giving the plaintiff nothing, then there would be “no opportunity for review” later because there would be nothing for a US court to enforce. This is a familiar trope that completely escapes me: If the award in fact goes against him then the plaintiff, ignoring it, may and will bring suit on the claim in a US court. The defendant then raises the Philippine award as a defense to the suit, and asks that it be “recognized” under the Convention. The plaintiff thus can litigate the appropriateness of recognition under article V—which is obviously a form of “review.” No? So what can these people be saying?

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

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

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