Scherk v. Alberto-Culver Co.
Opinion of the Court
delivered the opinion of the Court.
Alberto-Culver Co., the respondent, is an American company incorporated in Delaware with its principal office in Illinois. It manufactures and distributes toiletries and hair products in this country and abroad. During the 1960’s Alberto-Culver decided to expand its overseas operations, and as part of this program it approached the petitioner Fritz Scherk, a German citizen residing at the time of trial in Switzerland. Scherk was the owner of three interrelated business entities, organized under the laws of Germany and Liechtenstein, that were engaged in the manufacture of toiletries and the licensing of trademarks for such toiletries. An initial contact with Scherk was made by a representative of Alberto-Culver in Germany in June 1967, and negotiations followed at further meetings in both Europe and the United States during 1967 and 1968. In February 1969 a contract was signed in Vienna, Austria, which provided for the transfer of the ownership of Scherk’s enterprises to Alberto-Culver, along with all rights held by these enterprises to trademarks in cosmetic goods. The contract contained a number of express warranties whereby Scherk guaranteed the sole and unencumbered ownership of these trademarks. In addition, the contract contained an arbitration clause providing that “any controversy or claim [that] shall arise out of this agreement or the breach thereof” would be referred to arbitration before the International Chamber of Commerce in Paris, France, and that “[t]he laws of the State of Illinois, U. S. A. shall apply to and govern this agreement, its interpretation and performance.”
In response, Scherk filed a motion to dismiss the action for want of personal and subject-matter jurisdiction as well as on the basis of jorum non conveniens, or, alternatively, to stay the action pending arbitration in Paris pursuant to the agreement of the parties. Alberto-
I
The United States Arbitration Act, now 9 U. S. C. § 1 et seq., reversing centuries of judicial hostility to arbitration agreements,
In Wilko v. Swan, supra, this Court acknowledged that the Act reflects a legislative recognition of the “desirability of arbitration as an alternative to the complications of litigation,” 346 U. S., at 431, but nonetheless declined to apply the Act’s provisions. That case involved an agreement between Anthony Wilko and Hayden, Stone & Co., a large brokerage firm, under which Wilko agreed to purchase on margin a number of shares of a corporation’s common stock. Wilko alleged that his purchase of the stock was induced by false represen
The Court found that “[t] wo policies, not easily reconcilable, are involved in this case.” 346 U. S., at 438. On the one hand, the Arbitration Act stressed “the need for avoiding the delay and expense of litigation,” id., at 431, and directed that such agreements be “valid, irrevocable, and enforceable” in federal courts. On the other hand, the Securities Act of 1933 was “[d]esigned to protect investors” and to require “issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale,” by creating “a special right to recover for misrepresentation . . . .” 346 U. S., at 431 (footnote omitted). In particular, the Court noted that § 14 of the Securities Act, 15 U. S. C. § 77n, provides:
“Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.”
The Court ruled that an agreement to arbitrate “is a ‘stipulation/ and [that] the right to select the judicial forum is the kind of ‘provision’ that cannot be waived under § 14 of the Securities Act.”
Alberto-Culver, relying on this precedent, contends that the District Court and Court of Appeals were correct in holding that its agreement to arbitrate disputes arising under the contract with Scherk is similarly unenforceable in view of its contentions that Scherk’s conduct constituted violations of the Securities Exchange Act of 1934 and rules promulgated thereunder. For the reasons that follow, we reject this contention and hold that the provisions of the Arbitration Act cannot be ignored in this case.
At the outset, a colorable argument could be made that even the semantic reasoning of the Wilko opinion does not control the case before us. Wilko concerned a suit brought under § 12 (2) of the Securities Act of 1933, which provides a defrauded purchaser with the “special right” of a private remedy for civil liability, 346 U. S., at 431. There is no statutory counterpart of § 12 (2) in the Securities Exchange Act of 1934, and neither § 10 (b) of that Act nor Rule 10b-5 speaks of a private remedy to redress violations of the kind alleged here. While federal case law has established that § 10 (b) and Rule 10b-5 create an implied private cause of action, see
Such a contract involves considerations and policies significantly different from those found controlling in Wilko. In Wilko, quite apart from the arbitration provision, there was no question but that the laws of the United States generally, and the federal securities- laws in particular, would govern disputes arising out of the stock-purchase agreement. The parties, the negotiations, and the subject matter of the contract were all
Such uncertainty will almost inevitably exist with respect to any contract touching two or more countries, each with its own substantive laws and conflict-of-laws rules. A contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is, therefore, an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction. Furthermore, such a provision obviates the danger that a dispute under the agreement might be submitted to a forum hostile to the interests of. one of the parties or unfamiliar with the problem area involved.
A parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate these purposes, but would invite
The exception to the clear provisions of the Arbitration Act carved out by Wilko is simply inapposite to a case such as the one before us. In Wilko the Court reasoned
Two Terms ago in The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, we rejected the doctrine that a forum-selection clause of a contract, although voluntarily adopted by the parties, will not be respected in a suit brought in the United States “ 'unless the selected state would provide a more convenient forum than the state in which suit is brought.’ ” Id., at 7. Rather, we concluded that a “forum clause should control absent a strong showing that it should be set aside.” Id., at 15. We noted that “much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place [where personal or in rem jurisdiction might be established]. The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting.” Id., at 13-14.
For all these reasons we hold that the agreement of the parties in this case to arbitrate any dispute arising out of their international commercial transaction is to be
It is so ordered.
The arbitration clause relating to the transfer of one of Scherk’s business entities,, similar to the clauses covering the other two, reads in. its entirety as follows:
“The parties agree that if any controversy or claim shall arise out*509 of this agreement or the breach thereof and either party shall request that the matter shall be settled by arbitration, the matter shall be settled exclusively by arbitration in accordance with the rules then obtaining of the International Chamber of Commerce, Paris, France, by a single arbitrator, if the parties shall agree upon one, or by one arbitrator appointed by each party and a third arbitrator appointed by the other arbitrators. In case of any failure of a party to make an appointment referred to above within four weeks after notice of the controversy, such appointment shall be made by said Chamber. All arbitration proceedings shall be held in Paris, France, and each party agrees to comply in all respects with any award made in any such proceeding and to the entry of a judgment in any jurisdiction upon any award rendered in such proceeding. The laws of the State of Illinois, U. S. A. shall apply to and govern this agreement, its interpretation and performance.”
Scherk had taken steps to initiate arbitration in Paris in early 1971. He did not, however, file a formal request for arbitration with the International Chamber of Commerce until November 9, 1971, almost five months after the filing of Alberto-Culver’s complaint in the Illinois federal court.
The memorandum opinion of the District Court is unreported.
English courts traditionally considered irrevocable arbitration agreements as “ousting” the courts of jurisdiction, and refused to enforce such agreements for this reason. This view was adopted by American courts as part of the common law up to the time of the adoption of the Arbitration Act. See H. R. Rep. No. 96, 68th Cong.,
Section 2 of the Arbitration Act renders “valid, irrevocable, and enforceable” written arbitration provisions “in any maritime transaction or a contract evidencing a transaction involving commerce . . .,” as those terms are defined in § 1. In Bernhardt v. Poly-graphic Co., 350 U. S. 198, this Court held that the stay provisions of § 3 apply only to the two kinds of contracts specified in §§ 1 and 2. Since the transaction in this case constituted “commerce . . . with foreign nations,” 9 U. S. C. § 1, the Act clearly covers this agreement.
The arbitration agreement involved in Wilko was contained in a standard form margin contract. But see the dissenting opinion of Mr. Justice Frankfurter, 346 U. S. 427, 439, 440, concluding that the record did not show that “the plaintiff [Wilko] in opening an ac
Section 14 of the Securities Act of 1933, 15 U. S. C. § 77n, provides as follows:
"Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.”
Section 29 (a) of the Securities Exchange Act of 1934, 15 U. S. C. § 78cc (a), provides:
“Any condition, stipulation, or provision binding any person to waive compliance with any provision of this chapter or of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void.”
While the two sections are not identical, the variations in their wording seem irrelevant to the issue presented in this case.
We do not reach, or imply any opinion as to, the question whether the acquisition of Scherk’s businesses was a security transaction within the meaning of § 10 (b) of the Securities Exchange Act of 1934 and Rule 10b-5. Although this important question
Together with his motion for a stay pending arbitration, Scherk moved that the complaint be dismissed because the federal securities laws do not apply to this international transaction, cf. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F. 2d 1326 (CA2 1972). Since only the order granting the injunction was appealed, this contention was not considered by the Court of Appeals and is not before this Court.
See Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L. J. 1049,' 1051 (1961). For example, while the arbitration agreement involved here provided that the controversies arising out of the agreement be resolved under “[t]he laws of the State of Illinois,” supra, n. 1, a determination of the existence and extent of fraud concerning the trademarks would necessarily involve an understanding of foreign law on that subject.
The dissenting opinion argues that our conclusion that Wilko is inapplicable to the situation presented in this case will vitiate the force of that decision because parties to transactions with many-more direct contacts with this country than in the present case will nonetheless be able to invoke the “talisman” of having an “international contract.” Post, at 529. Coneededly, situations may arise where the contacts with foreign countries are so insignificant or attenuated that the holding in Wilko would meaningfully apply. Judicial response to such situations can and should await future litigation in concrete cases. This case, however, provides no basis for a judgment that only United States laws and United States courts should determine this controversy in the face of a solemn agreement between the parties that such controversies be resolved elsewhere. The only contact between the United States and the transaction involved here is the fact that Alberto-Culver is an American corporation and the occurrence of some — but by no means the greater part — of the pre-contract negotiations in this country. To determine that “American standards of fairness,” post, at 528, must nonetheless govern the controversy demeans the standards of justice elsewhere in the world, and unnecessarily exalts the primacy of United States law over the laws of other countries.
The dissenting opinion raises the specter that our holding today will leave American investors at the mercy of multinational corporations with .“vast operations around the world . . . .” Post, at 533. Our decision, of course, has no bearing on the scope of the substantive provisions of the federal securities laws for the simple reason that the question is not presented in this case. See n. 8, supra.
Under some circumstances, the designation of arbitration in a certain place might also be viewed as implicitly selecting the law of that place to apply to that transaction. In this case, however, “[t]he laws of the State of Illinois” were explicitly made applicable by the ' arbitration agreement. See n. 1, supra.
In The Bremen we noted that forum-selection clauses “should be given full effect” when “a freely negotiated private international agreement [is] unaffected by fraud . . . .” 407 U. S., at 13, 12. This qualification does not mean that any time a dispute arising out of a transaction is based upon an allegation, of fraud, as in this case, the clause is unenforceable. Rather, it means that an arbitration or forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion. Cf. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395.
Although we do not decide the question, presumably the type of fraud alleged here could be raised, under Art. V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, see n. 15, infra, in challenging the enforcement of whatever arbitral award is produced through arbitration. Article V (2) (b) of the Convention provides that a country may refuse recognition and enforcement of an award if “recognition or enforcement of the award would be contrary to the public policy of that country.”
Our conclusion today is confirmed by international developments and domestic legislation in the area of commercial arbitration subsequent to the Wilko decision. On June 10, 1958, a special conference of the United Nations Economic and Social Council adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In 1970 the United States acceded to the treaty, [1970] 3 U. S. T. 2517, T. I. A. S. No. 6997, and Congress passed Chapter 2 of the United States Arbitration Act, 9 U. S. C. § 201 et seq., in order to implement the Convention. Section 1 of the new chapter, 9 U. S. C. § 201, provides unequivocally that the Convention “shall be enforced in United States courts in accordance with this chapter,”
The goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, S. Exec. Doc. E, 90th Cong., 2d Sess. (1968); Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L. J. 1049 (1961). Article II (1) of the Convention provides:
“Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.”
In their discussion of this Article, the delegates to the Convention voiced frequent concern that courts of signatory countries in which an agreement to arbitrate is sought to be enforced should not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability or in a manner that would diminish the mutually binding nature of the agreements. See Q. Haight; Convention on the Recognition and Enforcement of For
Without reaching the issue of whether the Convention, apart from the considerations expressed in this opinion, would require of its own force that the agreement to arbitrate be enforced in the present case, we think that this country’s adoption and ratification of the Convention and the passage of Chapter 2 of the United States Arbitration Act provide strongly persuasive evidence of congressional policy consistent with the decision we reach today.
Dissenting Opinion
dissenting.
Respondent (Alberto-Culver) is a publicly held corporation whose stock is traded on the New York Stock Exchange and is a Delaware corporation with its principal place of business in Illinois. Petitioner (Scherk) owned a business in Germany, Firma Ludwig Scherk, dealing with cosmetics and toiletries. Scherk owned various trademarks and all outstanding securities of a Liechtenstein corporation (SEV) and of a German corporation, Lodeva. Scherk also owned various trademarks which were licensed to manufacturers and distributors in Europe and in this country. SEY collected the royalties on those licenses.
Alberto-Culver undertook to purchase from Scherk the entire establishment — the trademarks and the stock of the two corporations; and later, alleging it had been defrauded, brought this suit in the United States District Court in Illinois to rescind the agreement and to obtain damages.
The basic dispute between the parties concerned allegations that the trademarks which were basic assets in the transaction were encumbered and that their purchase was induced through serious instances of fraudulent representations and omissions by Scherk and his agents within the jurisdiction of the United States. If a question of trademarks were the only one involved, the principle of The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, would be controlling.
We have here, however, questions under the Securities Exchange Act of 1934, which in § 3 (a) (10) defines “security” as including any “note, stock, treasury stock, bond, debenture, certificate of interest or participation in any profit-sharing agreement....” 15 U. S. C. § 78c (a) (10). We held in Tcherepnin v. Knight, 389 U. S. 332, as respects § 3 (a) (10):
“[R] emedial legislation should be construed broadly to effectuate its purposes. The Securities Exchange Act quite clearly falls into the category of remedial legislation. One of its central purposes is to protect investors through the requirement of full disclosure by issuers of securities, and the definition of security in § 3 (a) (10) necessarily determines the classes of investments and investors which will receive the Act’s protections. Finally, we are reminded that, in searching for the meaning and scope of the word 'security’ in the Act, form should be disregarded for substance and the emphasis should*523 be on economic reality.” Id., at 336. (Footnote omitted.)
Section 10 (b) of the 1934 Act makes it unlawful for any person by use of agencies of interstate commerce or the mails “[t]o use or employ, in connection with the purchase or sale of any security,” whether or not registered on a national securities exchange, “any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.” 15 U. S. C. §78j (b).
Alberto-Culver, as noted, is not a private person but a corporation with publicly held stock listed on the New York Stock Exchange. If it is to be believed, if in other words the allegations made are proved, the American company has been defrauded by the issuance of “securities” (promissory notes) for assets which are worthless or of a much lower value than represented. Rule 10b-5 of the Securities and Exchange Commission states:
“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
“(a) To employ any device, scheme, or artifice to defraud,
“(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
“(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
“in connection with the purchase or sale of any security.” 17 CFR § 240.10b-5.
“Any condition, stipulation, or provision binding any person to waive compliance with any provision of this chapter or of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void.” 15 U. S. C. § 78cc (a).
And § 29 (b) adds that “[e]very contract” made in violation of the Act “shall be void.”
The Securities Act of 1933,48 Stat. 84,15 U. S .C. § 77n, has a like provision in its § 14:
“Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.”
In Wilko v. Swan, 346 U. S. 427, a customer brought suit against a brokerage house alleging fraud in the sale of stock. A motion was made to stay the trial until arbitration occurred under the United States Arbitration Act, 9 U. S. C. § 3, as provided in the customer’s contract. The
“As the protective provisions of the Securities Act require the exercise of judicial direction to fairly assure their effectiveness, it seems to us that Congress must have intended § 14 ... to apply to waiver of judicial trial and review.” 346 U. S., at 437.
Wilko was held by the Court of Appeals to control this case — and properly so.
The Court does not consider the question whether a “security” is involved in this case, saying it was not raised by petitioner. A respondent, however, has the right to urge any argument to support the judgment in his favor (save possibly questions of venue, see Peoria R. Co. v. United States, 263 U. S. 528, 536; United States v. American Railway Express Co., 265 U. S. 425, 435-436, and n. 11), even those not passed upon by the court below and also contentions rejected below. Langnes v. Green, 282 U. S. 531, 535-539; Walling v. General Industries Co., 330 U. S. 545, 547 n. 5. The Court of Appeals held that “securities” within the meaning of the 1934 Act were involved here, 484 F. 2d 611, 615. The brief of the respondent is based on the premise that “securities” are involved here; and petitioner has not questioned that ruling of the Court of Appeals.
It could perhaps be argued that Wilko does not govern because it involved a little customer pitted against a big brokerage house, while we deal here with sophisticated buyers and sellers: Scherk, a powerful German operator,
If there are victims here, they are not Alberto-Culver the corporation, but the thousands of investors who are the security holders in Alberto-Culver. If there is fraud and the promissory notes are excessive, the impact is on the equity in Alberto-Culver.
Moreover, the securities market these days is not made up of a host of small people scrambling to get in and out of stocks or other securities. The markets are overshadowed by huge institutional traders.
There has been much support for arbitration of disputes; and it may be the superior way of settling some disagreements. If A and B were quarreling over a trademark and there was an arbitration clause in the contract, the policy of Congress in implementing the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as it did in 9 U. S. C. § 201 et seq., would prevail. But the Act does not substitute an arbiter for the settlement of disputes under
“The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”5 [1970] 3 U. S. T. 2517, 2519, T. I. A. S. No. 6997.
But § 29 (a) of the 1934 Act makes agreements to arbitrate liabilities under § 10 of the- Act “void” and “inoperative.” Congress has specified a precise way whereby big and small investors will be protected and the rules under which the Alberto-Culvers of this Nation shall operate. They or their lawyers cannot waive those statutory conditions, for our corporate giants are not principalities of power but guardians of a host of wards unable to care for themselves. It is these wards that the 1934 Act tries to protect.
The Court finds it unnecessary to consider Scherk’s argument that this case is distinguishable from Wilko in that Wilko involved parties of unequal bargaining strength. Ante, at 512-513, n. 6. Instead, the Court rests its conclusion on the fact that this was an “international” agreement, with an American corporation investing in the stock and property of foreign businesses, and speaks favorably of the certainty which inheres when parties
This invocation of the “international contract” talisman might be applied to a situation where, for example, an interest in a foreign company or mutual fund was sold to an utterly unsophisticated American citizen, with material fraudulent misrepresentations made in this country. The arbitration clause could appear in the fine print of a form.contract, and still be sufficient to preclude recourse to our courts, forcing the defrauded citizen to arbitration in Paris to vindicate his rights.
It has been recognized that the 1934 Act, including the protections of Rule 10b-5, applies when foreign defendants have defrauded American investors, particularly when, as alleged here,
Section 29 (a) of the 1934 Act provides that a stipulation binding one to waive compliance with “any provision” of the Act shall be void, and the Act expressly provides that the federal district courts shall have “exclusive jurisdiction” over suits brought under the Act. 15 U. S. C.
Moreover, the international aura which the Court gives this case is ominous. We now have many multinational corporations in vast operations around the world — Europe, Latin America, the Middle East, and Asia.
Section 29 (b) reads: “Every contract made in violation of any provision of this chapter or of any rule or regulation thereunder, and every contract (including any contract for listing a security on an exchange) heretofore or hereafter made, the performance of which involves the violation of, or the continuance of any relationship or practice in violation of, any provision of this chapter or any rule or regulation thereunder, shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, or regulation, shall have made or engaged in the performance of any such contract, and (2) as regards the rights of any person who, not being a party to such contract, shall have acquired any right thereunder with actual knowledge of the facts by reason of which the making or performance of such contract was in violation of any such provision, rule, or regulation .. ..” 15 U. S. C. § 78cc (b).
See Institutional Investor Study Report of the SEC, H. R. Doc. No. 92-64 (1971), particularly Vol. 4.
Id., Vol. 1, p. XVI; Vol. 3, p. 879 et seq.
Id., Vol. 1, p. XIX; Vol. 2, p. 215 et seq.
The Convention also permits that arbitral awards not be recognized and enforced when a court in the country where enforcement is sought finds that “[t]he recognition or enforcement of the award would be contrary to the public policy of that country.” Art. V (2) (6); [1970] 3 U. S. T. 2517, 2520, T. I. A. S. No. 6997. It also provides that recognition of an award may be refused when the arbitration agreement “is not valid under the law to which the parties have subjected it,” in this case the laws of Illinois. Art. V (1) (a). See n. 10, infra.
Requirements promulgated under the 1934 Act require disclosure to security holders of corporate action which may affect them. Extensive annual reports must be filed with the SEC including, inter alia, financial figures, changes in the conduct of business, the acquisition or disposition of assets, increases or decreases in outstanding securities, and even the importance to the business of trademarks held. See 17 CFR §§240.13a-l, 249.310; 3 CCH Fed. Sec. L. Rep. ¶ 31,101 et seq. (Form 10-K). The Commission has pro
The Commission, recognizing that the Form 10-K reports filed annually with it might be excessively abstruse for security holders, see 39 Fed. Reg. 3835, has proposed that the annual reports distributed to security holders in connection with annual meetings and solicitation of proxies provide substantially greater am mint,a of meaningful information than required presently. These annual reports would include a description of the business of the issuer, a summary of operations, explanation of changes in revenues and expenses, information on the liquidity position and the working capital requirements of the issuer, and identification of management and performance on the market of the issuer's securities. See id., at 3834-3838.
The Court concedes, ante, at 517 n. 11, that there may be situations where foreign contacts were "so insignificant or attenuated” that Wüko would apply and an American court would not enforce an arbitration agreement in an international contract. The recognition that “international” contracts may in fact involve significant direct contacts with this country is realistic and salutary. But the Court by its concession undermines somewhat its reliance on its admonition — itself supported only by speculation — that “[a] contractual provision specifying in advance the forum in which disputes shall be litigated ... is ... an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction.” Uncertainty and a “dicey 'atmosphere,” supposedly destructive of international contracts, may persist for many contracts. The parties to an international contract may not in fact be bound by a “solemn agreement” to arbitrate, for an American court could find, at a much later date, sufficient contacts with this country to require the application of Wilko.
The District Court for the Northern District of Illinois noted allegations that Scherk had failed to state a material fact, the omission of which would have been misleading, see 17 CFR § 240.10b-5 (b), during crucial negotiations in Melrose Park, Illinois, and that communications between Alberto-Culver and Scherk’s attorney concerning the validity and value of the trademarks occurred within the
See, e. g., Leasco Data Processing Equipment Corp. v. Maxwell, 468 F. 2d 1326, 1334-1339 (CA2 1972); Travis v. Anthes Imperial Ltd,., 473 F. 2d 515, 523-528 (CA8 1973); SEC v. United Financial Group, Inc., 474 F. 2d 354 (CA9 1973); Schoenbaum v. Firstbrook, 405 F. 2d 200 (CA2 1968); Roth v. Fund of Funds, 279 F. Supp. 935 (SDNY), aff’d, 405 F. 2d 421 (CA2 1968).
A summary of the conference proceedings which led to the adoption of the United Nations Convention was prepared by G. W. Haight, who served as a member of the International Chamber of Commerce delegation' to the conference. Haight, Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Summary Analysis of Record of United Nations Conference, May/June 1958 (1958).
When Art.' II (3) was being discussed, the Israeli delegate pointed out that while a court could, under the draft Convention as it then stood, refuse enforcement of an award which was incompatible with public policy, “ ‘the court had to refer parties to arbitration whether or not such reference was lawful or incompatible with public policy.’ ” Id., at 27. The German delegate observed that this difficulty arose from the omission in Art. II (3) “ ‘of any words which would relate the arbitral agreement to an arbitral award capable of enforcement under the convention.’ ” Ibid.
Haight continues:
“When the German proposal was put to a vote, it failed to obtain a two-thirds majority (13 to 9) and the Article was thus adopted without any words linking agreements to the awards enforceable under the Convention. Nor was this omission corrected in the Report of the Drafting Committee (L.61), although the obligation*531 to refer parties to arbitration was (and still is) qualified by the clause ‘unless it finds that the agreement is null and void, inoperative or incapable of being performed.’
“As the applicable law is not indicated, courts may under this wording be allowed some latitude; they may find an agreement incapable of performance if it offends the law or the public policy of the forum. Apart from this limited opening, the Conference appeared unwilling to qualify the broad undertaking not only to recognize but also to give effect to arbitral agreements.” Id., at 28 (emphasis added).
Whatever “concern” the delegates had that signatories to the Convention “not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability,” ante, at 520 n. 15, it would seem that they contemplated that a court may decline to enforce an agreement which offends its law or public policy.
The Court also attempts to treat this case as only a minor variation of The Bremen v. Zapata Off-Shore Co., 407 U. S. 1. In that case, however, the Court, per Mr. Chief Justice Burger, explicitly stated:
"A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.” Id., at 15.
That is inescapably the case here, as § 29 of the Securities Exchange Act and Wilko v. Swan make clear. Neither § 29, nor the Convention on international arbitration, nor The Bremen justifies abandonment of a national public policy that securities claims be heard by a judicial forum simply because some international elements are involved in a contract.
The agreements in this case provided that the “laws of the State of Illinois” are applicable. Even if the arbitration court should read this clause to require application of Rule 10b-5’s standards, Alberto-Culver’s victory would be Pyrrhic. The arbitral court may improperly interpret the substantive protections of the Rule, and if it does its error will not be reviewable as would the error of a federal court. And the ability of Alberto-Culver to prosecute its
See Knickerbocker, Oligopolistic Reaction and Multinational Enterprise (Haw. Univ. 1973); J. Vaupel & J. Curhan, The World’s Multinational Enterprises (Harvard Univ. 1973). See generally Senate Committee on Finance, 93d Cong., 1st Sess., Implications of Multinational Firms for World Trade and Investment and for U. S. Trade and Labor (Comm. Print 1973); Morgan, Controlling the Multinationals, Washington Post, Nov. 17, 1973, p. A15; Diebold, Precarious Path of the Multinationals, Wall Street Journal, Aug. 17, 1973, p. 6, col. 4.
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