Ashley M. Wheelock | Comment
Generally speaking, when employers include an arbitration agreement in conjunction with a choice-of-law clause within a seaman’s employment contract, the intention is to require the seaman to arbitrate any negligence claims against the employer in a named nation subject to foreign law. Courts have grappled with the enforceability of arbitration and choice-of-law clauses in seamen’s employment contracts in light of the federally enacted Jones Act and the United Nation’s Convention on the Recognition and Enforcement of Foreign Arbitral Awards, more frequently referred to as the New York Convention, codified in chapter 2 of the U.S. Federal Arbitration Act (FAA). Notably, the FAA, enacted before the adoption of the New York Convention, explicitly excludes “contracts of employment of seamen” from its scope, while the New York Convention contains no such exclusion. In comparison, the Jones Act is remedial in nature and was enacted to provide seamen with formalized legal remedies not guaranteed by general maritime law.
When the New York Convention governs an employment contract, article II requires “the court of a Contracting State [to] refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.” Specifically at issue among the U.S. courts of appeal is the meaning of “null and void,” and whether this exception permits a Jones Act seaman to present public policy arguments to prevent a court from compelling arbitration in accordance with his employment contract. The most common of these public policy arguments contends that he will be deprived of the myriad protections and remedies guaranteed to the seaman by the Jones Act and relevant case law.
Two interpretations of the article II “null and void” exception have emerged. First, courts interpret article II of the New York Convention strictly to include only standard breach-of-contract defenses. Accordingly, courts may not consider public policy and are required to enforce the arbitration of the seaman’s Jones Act claims in accordance with any forum-selection and choice-of-law clauses within the seaman’s employment contract. Alternatively, courts have utilized a moderate interpretation, concluding that the article II “null and void” exception permits a court to entertain a seaman’s public policy argument and consider the likelihood that arbitration in accordance with the employment contract will be inhospitable to the seaman’s Jones Act claims.
This Comment will summarize the public policy argument Jones Act seamen wish to make at the arbitration-enforcement stage of litigation. Next, it will examine and analyze the relevant provisions of the FAA and the New York Convention. Subsequently, this Comment will review the Supreme Court of the United States’ jurisprudence regarding the enforcement of arbitration agreements and choice-of-law provisions contained within international contracts when U.S. statutory claims are involved. It will then summarize and analyze the relevant jurisprudence amongst the U.S. courts of appeal that have addressed the enforceability of arbitration agreements and choice-of-law provisions within a Jones Act seaman’s employment contract. Finally, this Comment will analyze the two interpretations of the “null and void” exception that U.S. courts have utilized. Relying upon the Supreme Court’s rationale in Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, this Comment will argue that these two interpretations of “null and void” can be reconciled.