
UNITED STATES 18 February 2021 Thamalassen Sungaralingum
United States District Court, Southern District of Florida, 18 February 2021, Case No. 20-24829-CIV-COOKE/O'SULLIVAN
(Thamalassen Sungaralingum v. Carnival Corporation and Heinemann American Cruise Retail, LLC)
UNITED STATES 18 February 2021 Thamalassen Sungaralingum
The plaintiff, a seaman, argued that the arbitration provisions in the two contracts he signed contradicted each other and were therefore unenforceable. The Court disagreed and compelled arbitration of the dispute, finding that the four jurisdictional requirements for compelling arbitration under the New York Convention were met: there was an agreement in writing within the meaning of the Convention, which provided for arbitration in the territory of a Convention signatory and arose out of a legal relationship, whether contractual or not, which was considered commercial; and a party to the agreement was not an American citizen, or the commercial relationship had some reasonable relation with one or more foreign states. Further, the Court found that there were no affirmative defenses, noting that at the arbitration-enforcement stage the only affirmative defense to arbitration is a defense that demonstrates that the arbitration agreement is "null and void, inoperative or incapable of being performed".
The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.
The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.