1 before court
1.1 oral argument
1.1.1 mitsubishi
1.1.2 soler
1.1.3 united states
before court
both parties appealed supreme court. arbitration proceedings continued, both parties paid fees , jcaa assembled panel hear case. in september 1984, after mitsubishi presented case panel, soler declared bankruptcy, resulting in automatic stay. shortly afterward, court granted certiorari
amici briefs filed several parties. american arbitration association urged reversal of holding on sherman act claims; national automobile dealers association (nada) urged reversal of other aspect of holding. solicitor general s office filed 1 on behalf of federal government in support of soler. international chamber of commerce , commonwealth of puerto rico shared thoughts on case in briefs.
oral argument
the court heard oral arguments in march 1985. wayne cross argued mitsubishi , benjamin ramon-rodriguez soler. in addition, jerrold joseph ganzfried allowed time argue federal government in support of soler.
mitsubishi
cross repeatedly asserted there 1 question justices consider: whether party s contractual right arbitrate antitrust disputes can frustrated absent such countervailing federal policy found in federal statute. in support of cited case court had decided unanimously 2 weeks earlier, dean witter reynolds inc. v. byrd, had upheld request arbitration of securities fraud claims under state law though parallel claims under federal law still litigated. preeminent concern of congress in passing [faa], cross quoted justice thurgood marshall s opinion in case, enforce private agreements parties had entered, , concern requires rigorously enforce agreements arbitrate ... @ least absent countervailing policy manifested in federal statute.
cross rebuffed efforts justices ask issue still being argued soler, other statutory claims non-arbitrable well. declined initially, reminding them 2 lower courts had held otherwise. after reminded still making argument, said did not think applicable specific claims.
he continued specifics of argument. submit circuit court s reliance upon american safety case fundamentally @ odds purpose of federal arbitration act. in byrd , other recent cases, court had affirmed strong national policy favoring arbitration, had put in moses h. cone memorial hospital v. mercury construction corp., , saw no reason stop here. however, when challenged on how court reach desired result without overruling american safety , avoid question of whether purely domestic antitrust claims arbitrable, pointed justices scherk. did not read [it] ... overruling wilko limitation on wilko in international conduct.
the justices had concerns international nature of case. arbitrators overseas decide ignore american law in deciding antitrust claim? cross said not likely, understood, , in event arbitrators had handled cases complex, if not more than, antitrust claims , not incapable of instant case. called american safety doctrine usurpation of power.
soler
rodriguez-ramon laid out facts of case @ length in order bolster case arbitration clause should not applied matters parties had not expressly agreed arbitrate such statutory claims. have hard row hoe here in getting change that, 1 justice told him, acknowledging lower-court rulings. rodriguez-ramon cited efficiency , expediency offered arbitration factors court had held in favor, , contrasted now-bankrupt client, have take witnesses , evidence japan case heard in country s language.
asked why, given clear advantage seemed offer, mitsubishi have written rodriguez-ramon contended adhesion contract such narrow arbitration clause, lawyer insisted mitsubishi considered possibility of arbitrating commercial contractual controversy. why else, suggested, language of arbitration clause have mentioned sections of contract applied? , if had been intended broadly, reminded court had held in many other cases statutory claims not arbitrated.
further, both faa , convention allowed distinction. finally, in terms of antitrust litigation, talking about? rodriguez-ramon concluded. antitrust litigant in country has right litigate before court , before peers. entitled have trial jury. entitled heard 12 of peers concerning whether defendant has committed ... restraint of trade.
lastly, rodriguez-ramon distinguished soler s case scherk 2 factors. first, contract had not been negotiated had been in older case; , second, contract in scherk called performance overseas while soler had make performance in u.s. territory. nor did find southland corp. v. keating, in court held faa applied contracts executed under state law, applicable, since in case court had considered law unique california whereas here dealing law parallel federal statute every state had enacted.
consequence of contrary holding honorable court, respectfully submit, ominous, said rodriguez-ramon. if allowed arbitration such 1 client preparing for, large international corporation able word contracts skirt american law. [a]ll these people have go arbitrate outside of continental united states, in foreign arbitration areas different united states, possibly under different languages, under different juridical criteria adjudication of controversies.
united states
court of appeals accommodated 3 interests @ issue in case, ganzfried told justices. [t]hose interests are, one, primacy of antitrust law in preserving our economic system of free competition; two, general encouragement of arbitration means of resolving private disputes; , three, our commitment international convention requires enforcement of agreements arbitrate limited exceptions.
an agreement arbitrate antitrust claims not enforceable, maintained, if specified members of congress or senior federal judges arbitrators. fact operating in system in there no substantive appellate review. if part of parties bargained for, maintained, underlying public policy important.
private actions had been intended under antitrust law, ganzfried reminded justices. raised possibility manufacturer could, through agreements distributors, create nice, tidy buffer american antitrust laws , since indirect purchasers likewise lack standing sue under illinois brick doctrine. when pointed out faa passed after antitrust laws, history of enforcement of antitrust laws indicates not considered remote possibility worth discussing antitrust actions subject arbitration. there no record had been able find of private parties arbitrating one.
cross, allowed 5 minutes rebuttal, addressed ganzfried s closing observation under jcaa rules, testimony not taken under oath. [i]t may oath taking process has culture of japan taking oath doesn t have quite significance here. admitted arbitrators still had consider credibility of witnesses, called ganzfried s claim straw man.
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