Prospective-waiver dictum in footnote 19 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.

the norwegian dawn, lindo worked. many cases considering footnote 19 have been brought cruise ship employees

two years later, in 2011, circuit divided sharply on similar case, lindo v. ncl (bahamas) ltd., footnote 19 hotly disputed. nicaraguan suffered injury on norwegian dawn challenged bahamanian-law arbitration mandated contract on same grounds thomas. frank m. hull wrote lengthy opinion reviewed in detail relevant case law thomas , heavily criticized it. thomas, hull wrote, ignored vimar , had ignored circuit precedent under convention, arbitration clauses voided prior process same general grounds contracts anywhere. failed apply convention, rendering public-policy defense in error. footnote 19, wrote, indisputably dicta .

rosemary barkett, member of original thomas panel, dissented. not believe lindo must needlessly wait until after arbitration raise public policy argument, wrote. majority had read convention narrowly, , footnote 19, far being dicta, critical court s reasoning , outcome of case. merely because court did not find prospective waiver there not make language—forming part of court s core reasoning—dicta. if were, observed, court have said in vimar , pyett.

she accused colleagues of transform[ing] enforcement of international arbitration agreements top u.s. public policy treating footnote 19 dicta. [t]here nothing suggest political branches ever intended such result ... believe supreme court meant said in mitsubishi.