Opinion · Supreme Court of the United States

Wilko v. Swan

Wilko v. Swan, 74 S. Ct. 182 (1953)

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1953-12-07
Topic
general

holding that the arbitration of securities claims was forbidden by the grant of exclusive jurisdiction to federal courts in § 22 of the 1933 Act | recognizing that, even when the evidence is probative, the "overriding policy of excluding such evidence ... is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice" | recognizing that Hall Street overruled “manifest disregard of the law” as an independent basis for vacatur | noting that an Arbitrators’ award “may be made without explanation of their reasons 7 and without a complete record of their proceedings” | questioning arbitrators' understanding of legal concepts and worrying that lack of complete record of proceedings and explanation of awards will prevent adequate judicial review | questioning arbitrators’ understanding of legal concepts and worrying that lack of complete record of proceedings and explanation of awards will prevent adequate judicial review | discussing the advantages of a judicial forum over arbitration in the context of federal securities laws | discussing the advantages of a judicial forum over arbitration in the context of federal securities laws | recognizing manifest disregard as ground for vacating arbitration award | denying the defendants’ request to stay the prosecution of a civil securities claim pending arbitration pursuant to their agreement with the plaintiff | holding claims arising under the 1933 Act not arbitrable | observing that arbitral awards may be made without explanation | stating Securities Act of 1933 precluded waiver of judicial forum, rendering arbitration agreement invalid | recognizing manifest disregard as ground for vacating arbitration award | stating Securities Act of 1933 precluded waiver of judicial forum, rendering arbitration agreement invalid | noting in dicta that “the interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation” | creating a judicial standard for reviewing arbitration awards outside the Federal Arbitration Act | creating a judicial standard for reviewing arbitration awards outside the Federal Arbitration Act | finding generally that arbitration provisions did not protect consumer or statutory plaintiffs | § 12(2) right viewed as “special” because of differences between that right and a common-law cause of action, differences that favored the investor | § 12(2) right viewed as "special" because of differences between that right and a common-law cause of action, differences that favored the investor | anti-waiver provision reveals congressional intent to bar arbitrability of securities actions under the Securities Act of 1933 | anti-waiver provision reveals congressional intent to bar arbitrability of securities actions under the Securities Act of 1933 | “[T]he interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation” | “[T]he interpretations of the law by the arbitra tors in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation” | enforcement of international but not domestic, agreement to arbitrate claim based on alleged Securities Act violations. | the validity of a contract under the Sherman Antitrust Act is not an arbitrable issue | courts may set aside arbitration awards which are based upon a manifest disregard of the law | an arbitrator's "subjective findings on ... purpose and knowledge" cannot be grounds for vacation of an award | the validity of a contract under the Sherman Antitrust Act is not an arbitrable issue | the "award may be made without explanation of their reasons and without a complete record of their proceedings" | the "award may be made without explanation of their reasons and without a complete record of their proceedings” | Securities A

Citator

Authority status
negative
Cited by
1226 opinions
Negative treatment
1 citing opinion
WILKOv. SWAN,346 U.S. 427(1953)
74 S.Ct. 182
WILKOv. SWAN ET AL., DOING BUSINESS AS HAYDEN, STONE CO., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 39.
Argued October 21, 1953.
Decided December 7, 1953.
In an action brought by a customer against a securities brokerage firm to recover damages, under the civil liabilities provisions of § 12(2) of the Securities Act of 1933, for alleged misrepresentation in the sale of securities,heldthat an agreement for arbitration of any controversy arising in the future between the parties was void under § 14, notwithstanding the provisions of the United States Arbitration Act. Pp. 428-438.
(a) The agreement to arbitrate future controversies was void under § 14 of the Securities Act as a "stipulation" binding the customer to "waive compliance" with a "provision" of the Act. Pp. 432-435.
(b) The right of an aggrieved person under § 22(a) to select the judicial forum is a "provision" of the Securities Act that cannot be waived under § 14 thereof. Pp. 434-438.
(c) As the protective provisions of the Securities Act require the exercise of judicial direction to fairly assure their effectiveness, Congress must have intended § 14 to apply to waiver of judicial trial and review. P. 437.
201 F.2d 439, reversed.
Petitioner sued respondents to recover damages under
the Securities Act of 1933. Respondents' motion to stay
the action, pursuant to § 3 of the United States Arbitration
Act, was denied by the District Court.107 F. Supp. 75
. The Court of Appeals reversed.201 F.2d 439.
This Court granted certiorari.345 U.S. 969.Reversed,
p. 438.
Richard H. Welsargued the cause for petitioner. With him on the brief wasHenry E. Mills.

By special leave of Court,William H. Timbersargued the cause for the Securities and Exchange Commission,Page 428asamicus curiae, urging reversal. With him on the brief wereActing Solicitor General Stern, Roger S. FosterandAlexander Cohen.Horace G. Hitchcockargued the cause for respondents. With him on the brief wereRalph D. RayandFrancisE. Koch.
MR. JUSTICE REED delivered the opinion of the Court.
This action by petitioner,fn*a customer, against respondents, partners in a securities brokerage firm, was brought in the United States District Court for the Southern District of New York, to recover damages under § 12(2) of the Securities Act of 1933.1The complaint alleged that on or about January 17, 1951, through the instrumentalities of interstate commerce, petitioner was induced by Hayden, Stone and Company to purchasePage 4291,600 shares of the common stock of Air Associates, Incorporated, by false representations that pursuant to a merger contract with the Borg Warner Corporation, Air Associates' stock would be valued at $6.00 per share over the then current market price, and that financial interests were buying up the stock for the speculative profit. It was alleged that he was not told that Haven B. Page (also named as a defendant but not involved in this review2), a director of, and counsel for, Air Associates was then selling his own Air Associates' stock, including some or all that petitioner purchased. Two weeks after the purchase, petitioner disposed of the stock at a loss. Claiming that the loss was due to the firm's misrepresentations and omission of information concerning Mr. Page, he sought damages.

Without answering the complaint, the respondent moved to stay the trial of the action pursuant to § 3 of the United States Arbitration Act3until an arbitration in accordance with the terms of identical margin agreements was had. An affidavit accompanied the motion stating that the parties' relationship was controlled by the terms of the agreements and that while the firm was willing to arbitrate petitioner had failed to seek or proceed with any arbitration of the controversy.

Finding that the margin agreements provide that arbitration should be the method of settling all futurePage 430controversies, the District Court held that the agreement to arbitrate deprived petitioner of the advantageous court remedy afforded by the Securities Act, and denied the stay.4A divided Court of Appeals concluded that the Act did not prohibit the agreement to refer future controversies to arbitration, and reversed.5

The question is whether an agreement to arbitrate a future controversy is a "condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision" of the Securities Act which § 146declares "void." We granted certiorari,345 U.S. 969, to review this important and novel federal question affecting both the Securities Act and the United States Arbitration Act. Cf.Frost Co. v.Coeur D' AleneMines Corp.,312 U.S. 38,40.

As the margin agreement in the light of the complaint evidenced a transaction in interstate commerce, no issue arises as to the applicability of the provisions of the United States Arbitration Act to this suit, based upon the Securities Act. 9 U.S.C. (Supp. V, 1952) § 2. Cf.Tejas Development Co. v.McGough Bros.,165 F.2d 276,278, withAgostini Bros. Bldg. Corp. v.United States,142 F.2d 854. See Sturges and Murphy, Some Confusing Matters Relating to Arbitration, 17 Law Contemp. Prob. 580.

In response to a Presidential message urging that there be added to the ancient rule ofcaveat emptorthe further doctrine of "let the seller also beware."7Congress passedPage 431the Securities Act of 1933. Designed to protect investors,8the Act requires 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.9To effectuate this policy, § 12(2) created a special right to recover for misrepresentation which differs substantially from the common-law action in that the seller is made to assume the burden of proving lack of scienter.10The Act's special right is enforceable in any court of competent jurisdiction — federal or state — and removal from a state court is prohibited. If suit be brought in a federal court, the purchaser has a wide choice of venue, the privilege of nation-wide service of process and the jurisdictional $3,000 requirement of diversity cases is inapplicable.11

The United States Arbitration Act establishes by statute the desirability of arbitration as an alternative to the complications of litigation. The reports of both Houses on that Act stress the need for avoiding the delay and expense of litigation,12and practice under its terms raisesPage 432hope for its usefulness both in controversies based on statutes13or on standards otherwise created.14This hospitable attitude of legislatures and courts toward arbitration, however, does not solve our question as to the validity of petitioner's stipulation by the margin agreements, set out below, to submit to arbitration controversies that might arise from the transactions.15

Petitioner argues that § 14, note 6,supra, shows that the purpose of Congress was to assure that sellers could not maneuver buyers into a position that might weaken their ability to recover under the Securities Act. He contends that arbitration lacks the certainty of a suit at law under the Act to enforce his rights. He reasons that the arbitration paragraph of the margin agreement is a stipulation that waives "compliance with" the provisionPage 433of the Securities Act, set out in the margin, conferring jurisdiction of suits and special powers.16

Respondent asserts that arbitration is merely a form of trial to be used in lieu of a trial at law,17and therefore no conflict exists between the Securities Act and the United States Arbitration Act either in their language or in the congressional purposes in their enactment. Each may function within its own scope, the former to protect investors and the latter to simplify recovery for actionable violations of law by issuers or dealers in securities.

Respondent is in agreement with the Court of Appeals that the margin agreement arbitration paragraph, note 15,supra, does not relieve the seller from either liability or burden of proof, note 1,supra, imposed by the Securities Act.18We agree that in so far as the award in arbitrationPage 434may be affected by legal requirements, statutes or common law, rather than by considerations of fairness, the provisions of the Securities Act control.19This is true even though this proposed agreement has no requirement that the arbitrators follow the law. This agreement of the parties as to the effect of the Securities Act includes also acceptance of the invalidity of the paragraph of the margin agreement that relieves the respondent sellers of liability for all "representation or advice by you or your employees or agents regarding the purchase or sale by me of any property . . . ."

The words of § 14, note 6,supra, void any "stipulation" waiving compliance with any "provision" of the Securities Act. This arrangement to arbitrate is a "stipulation,"Page 435and we think the right to select the judicial forum is the kind of "provision" that cannot be waived under § 14 of the Securities Act. That conclusion is reached for the reasons set out above in the statement of petitioner's contention on this review. While a buyer and seller of securities, under some circumstances, may deal at arm's length on equal terms, it is clear that the Securities Act was drafted with an eye to the disadvantages under which buyers labor. Issuers of and dealers in securities have better opportunities to investigate and appraise the prospective earnings and business plans affecting securities than buyers. It is therefore reasonable for Congress to put buyers of securities covered by that Act on a different basis from other purchasers.

When the security buyer, prior to any violation of the Securities Act, waives his right to sue in courts, he gives up more than would a participant in other business transactions. The security buyer has a wider choice of courts and venue. He thus surrenders one of the advantages the Act gives him and surrenders it at a time when he is less able to judge the weight of the handicap the Securities Act places upon his adversary.

Even though the provisions of the Securities Act, advantageous to the buyer, apply, their effectiveness in application is lessened in arbitration as compared to judicial proceedings. Determination of the quality of a commodity20or the amount of money due under a contract is not the type of issue here involved.21This case requires subjective findings on the purpose and knowledgePage 436of an alleged violator of the Act. They must be not only determined but applied by the arbitrators without judicial instruction on the law. As their award may be made without explanation of their reasons and without a complete record of their proceedings, the arbitrators' conception of the legal meaning of such statutory requirements as "burden of proof," "reasonable care" or "material fact," see note 1,supra, cannot be examined. Power to vacate an award is limited.22While it may be true, as the Court of Appeals thought, that a failure of the arbitrators to decide in accordance with the provisions of the Securities Act would "constitute grounds for vacating the award pursuant to section 10 of the Federal Arbitration Act,"23that failure would need to be made clearly to appear. In unrestricted submissions, such as the present margin agreements envisage, the interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for errorPage 437in interpretation.24The United States Arbitration Act contains no provision for judicial determination of legal issues such as is found in the English law.25As 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, note 6,supra, to apply to waiver of judicial trial and review.26

This accords withBoydv.Grand Trunk Western R. Co.,338 U.S. 263.27We there held invalid a stipulation restricting an employee's choice of venue in an action under the Federal Employers' Liability Act. Section 6 of that Act permitted suit in any one of several localities and § 5 forbade a common carrier's exempting itself from any liability under the Act.28Section 5 had been adopted to avoid contracts waiving employers' liability.29It isPage 438to be noted that in words it forbade exemption only from "liability." We said the right to select the "forum" even after the creation of a liability is a "substantial right" and that the agreement, restricting that choice, would thwart the express purpose of the statute. We need not and do not go so far in this present case. By the terms of the agreement to arbitrate, petitioner is restricted in his choice of forum prior to the existence of a controversy. While the Securities Act does not require petitioner to sue,30a waiver in advance of a controversy stands upon a different footing.31

Two policies, not easily reconcilable, are involved in this case. Congress has afforded participants in transactions subject to its legislative power an opportunity generally to secure prompt, economical and adequate solution of controversies through arbitration if the parties are willing to accept less certainty of legally correct adjustment.32On the other hand, it has enacted the Securities Act to protect the rights of investors and has forbidden a waiver of any of those rights. Recognizing the advantages that prior agreements for arbitration may provide for the solution of commercial controversies, we decide that the intention of Congress concerning the sale of securities is better carried out by holding invalid such an agreement for arbitration of issues arising under the Act.Reversed.
MR. JUSTICE JACKSON, concurring.
I agree with the Court's opinion insofar as it construes the Securities Act to prohibit waiver of a judicial remedy in favor of arbitration by agreement made before any controversy arose. I think thereafter the parties could agree upon arbitration. However, I find it unnecessaryPage 439in this case, where there has not been and could not be any arbitration, to decide that the Arbitration Act precludes any judicial remedy for the arbitrators' error of interpretation of a relevant statute.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE MINTON joins, dissenting.
If arbitration inherently precluded full protection of the rights § 12(2) of the Securities Act affords to a purchaser of securities, or if there were no effective means of ensuring judicial review of the legal basis of the arbitration, then, of course, an agreement to settle the controversy by arbitration would be barred by § 14, the anti-waiver provision, of that Act.

There is nothing in the record before us, nor in the facts of which we can take judicial notice, to indicate that the arbitral system as practiced in the City of New York, and as enforceable under the supervisory authority of the District Court for the Southern District of New York, would not afford the plaintiff the rights to which he is entitled.fn*

The impelling considerations that led to the enactment of the Federal Arbitration Act are the advantages of providing a speedier, more economical and more effectivePage 440enforcement of rights by way of arbitration than can be had by the tortuous course of litigation, especially in the City of New York. These advantages should not be assumed to be denied in controversies like that before us arising under the Securities Act, in the absence of any showing that settlement by arbitration would jeopardize the rights of the plaintiff.

Arbitrators may not disregard the law. Specifically they are, as Chief Judge Swan pointed out, "bound to decide in accordance with the provisions of section 12(2)." On this we are all agreed. It is suggested, however, that there is no effective way of assuring obedience by the arbitrators to the governing law. But since their failure to observe this law "would . . . constitute grounds for vacating the award pursuant to section 10 of the Federal Arbitration Act,"201 F.2d 439,445, appropriate means for judicial scrutiny must be implied, in the form of some record or opinion, however informal, whereby such compliance will appear, or want of it will upset the award.

We have not before us a case in which the record shows that the plaintiff in opening an account had no choice but to accept the arbitration stipulation, thereby making the stipulation an unconscionable and unenforceable provision in a business transaction. The Securities and Exchange Commission, asamicus curiae, does not contend that the stipulation which the Court of Appeals respected, under the appropriate safeguards defined by it, was a coercive practice by financial houses against customers incapable of self-protection. It is one thing to make out a case of overreaching as between parties bargaining not at arm's length. It is quite a different thing to find in the anti-waiver provision of the Securities Act a general limitation on the Federal Arbitration Act.

On the state of the record before us, I would affirm the decision of the Court of Appeals.Page 441
  1. Page 428 The Securities and Exchange Commission participated asamicuscuriaethroughout this case and has shared petitioner's burden in presenting the case to the Court. ↩
  2. Page 42848 Stat. 74,15 U.S.C. § 77aet seq. § 12(2),48 Stat. 84,15 U.S.C. § 77l(2), provides: "Any person who — . . . .

    "(2) sells a security (whether or not exempted by the provisions of section 77c of this title, other than paragraph (2) of subsection (a) of said section 77c), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security." ↩
  3. Page 429 SeeWilkov.Swan,201 F.2d 439,445. ↩
  4. Page 429 9 U.S.C. (Supp. V, 1952) § 1et seq. § 3 provides:

    "If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." ↩
  5. Page 430Wilkov.Swan,107 F. Supp. 75. ↩
  6. Page 430Wilkov.Swan,201 F.2d 439. ↩
  7. Page 43048 Stat. 84,15 U.S.C. § 77n. § 14 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." ↩
  8. Page 430 H.R. Rep. No. 85, 73d Cong., 1st Sess. 2. ↩
  9. Page 431 S. Rep. No. 47, 73d Cong., 1st Sess. 1. SeeOklahoma-TexasTrustv.S.E. C.,100 F.2d 888,891. ↩
  10. Page 43148 Stat. 74, Preamble;48 Stat. 77,15 U.S.C. § 77d. SeeFrostCo. v.Coeur D'Alene Mines Corp.,312 U.S. 38,40. ↩
  11. Page 431 See note 1,supra. "Unless responsibility is to involve merely paper liability it is necessary to throw the burden of disproving responsibility for reprehensible acts of omission or commission on those who purport to issue statements for the public's reliance. . . . To impose a lesser responsibility would nullify the purposes of this legislation." H.R. Rep. No. 85, 73d Cong., 1st Sess. 9-10. ↩
  12. Page 431 § 22(a),48 Stat. 86, as amended49 Stat. 1921,15 U.S.C. § 77v(a). SeeDeckertv.Independence Shares Corp.,311 U.S. 282,289. Existing remedies at law and equity are retained. § 16,48 Stat. 84,15 U.S.C. § 77p. ↩
  13. Page 431 H.R. Rep. No. 96, 68th Cong., 1st Sess. 1-2; S. Rep. No. 536, 68th Cong., 1st Sess. 3. SeeMarine Transit Corp. v.Dreyfus,284 U.S. 263. ↩
  14. Page 432Agostini Bros. Bldg. Corp. v.United States,142 F.2d 854;Watkinsv.Hudson Coal Co.,151 F.2d 311;Donahuev.SusquehannaCollieries Co.,138 F.2d 3;Donahuev.Susquehanna CollieriesCo.,160 F.2d 661;Evansv.Hudson Coal Co.,165 F.2d 970. ↩
  15. Page 432Marine Transit Corp. v.Dreyfus,284 U.S. 263;Kentucky RiverMillsv.Jackson,206 F.2d 111;Campbellv.American Fabrics Co.,168 F.2d 959;Columbian Fuel Corp. v.United Fuel Gas Co.,72 F. Supp. 843, affirmed,165 F.2d 746;Matter of Springs Cotton Mills(Buster Boy Suit Co.),275 A.D. 196,88 N.Y.S.2d 295, affirmed,300 N.Y. 586,89 N.E.2d 877;White Star Mining Co. v.Hultberg,220 Ill. 578,77 N.E. 327;Oregon-Washington R. N.Co. v.Spokane, P. S. R. Co.,83 Or. 528,163 P. 600; Sturges, Commercial Arbitrations and Awards, pp. 502, 793-798. ↩
  16. Page 432 "Any controversy arising between us under this contract shall be determined by arbitration pursuant to the Arbitration Law of the State of New York, and under the rules of either the Arbitration Committee of the Chamber of Commerce of the State of New York, or of the American Arbitration Association, or of the Arbitration Committee of the New York Stock Exchange or such other Exchange as may have jurisdiction over the matter in dispute, as I may elect. Any arbitration hereunder shall be before at least three arbitrators." ↩
  17. Page 43348 Stat. 86, as amended,49 Stat. 1921,15 U.S.C. § 77v(a). § 22(a) provides:

    "The district courts of the United States . . . shall have jurisdiction . . . concurrent with State and Territorial courts, of all suits in equity and actions at law brought to enforce any liability or duty created by this subchapter. Any such suit or action may be brought in the district wherein the defendant is found or is an inhabitant or transacts business, or in the district where the sale took place, if the defendant participated therein, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections [1292-93] and [1254] of Title 28. No case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. . . ." See note 11,supra. ↩
  18. Page 433 SeeMurray Oil Products Co. v.Mitsui Co.,146 F.2d 381,383;American Locomotive Co. v.Chemical Research Corp.,171 F.2d 115,120. ↩
  19. Page 433 "Paragraph 3 of the margin agreement provides that all transactions `shall be subject to the provisions of the Securities Exchange Act of 1934 and present and future acts amendatory thereto [15 U.S.C.A. § 78aet seq.].' It contains no express mention of thePage 434Securities Act of 1933. If reference to the 1934 Act were construed as excluding the 1933 Act, it might be argued that the agreement did not provide for arbitration of a controversy as to the liability of Hayden, Stone Co. under section 12(2) of the 1933 Act. But we do not think the principle ofexpressio unius est exclusio alteriusis here applicable. It may well be that the phrase `present * * * acts * * * supplemental' to the 1934 Act should be construed to include the 1933 Act. In any event the sale transaction would necessarily be subject to that Act. Therefore theamicusdoes not regard it as material whether or not the agreement purports to make that statute applicable. We agree, and shall proceed to a consideration of the question decided below, namely, whether the 1933 Act evidences a public policy which forbids referring the controversy to arbitration."201 F.2d, at 443.

    The paragraph of the agreement referred to by the Court of Appeals as "3" reads as follows:

    "All transactions made by you or your agents for me are to be subject to the constitutions, rules, customs and practices of the exchanges or markets where executed and of their respective clearing houses and shall be subject to the provisions of the Securities Exchange Act of 1934 and present and future acts amendatory thereof or supplemental thereto, and to the rules and regulations of the Federal Securities and Exchange Commission and of the Federal Reserve Board insofar as they may be applicable . . . ." ↩
  20. Page 434 See Sturges, Commercial Arbitrations and Awards, p. 500. ↩
  21. Page 435Campe Corp. v.Pacific Mills,87 N.Y.S.2d 16, reversed,275 A.D. 634,92 N.Y.S.2d 347. ↩
  22. Page 435Evansv.Hudson Coal Co.,165 F.2d 970;Donahuev.SusquehannaCollieries Co.,160 F.2d 661;Watkinsv.Hudson Coal Co.,151 F.2d 311;Donahuev.Susquehanna Collieries Co.,138 F.2d 3;Agostini Bros. Bldg. Corp. v.United States,142 F.2d 854;AmericanAlmond Prod. Co. v.Consolidated Pecan S. Co.,144 F.2d 448. ↩
  23. Page 436 9 U.S.C. (Supp. V, 1952) § 10:

    "In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration —

    "(a) Where the award was procured by corruption, fraud, or undue means.

    "(b) Where there was evident partiality or corruption in the arbitrators, or either of them.

    "(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.

    "(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

    "(e) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators." ↩
  24. Page 436Wilkov.Swan,201 F.2d 439,445. ↩
  25. Page 437Burchellv.Marsh, 17 How. 344, 349;United Statesv.Farragut, 22 Wall. 406, 413, 419-421 (note the right of review);Kleinev.Catara, 14 Fed. Cas. 732, No. 7,869;Texas P. R. Co. v.St. LouisSouthwestern R. Co.,158 F.2d 251,256;The Hartbridge,62 F.2d 72,73. InMutual Benefit Health Acc. Assn. v.United Cas. Co.,142 F.2d 390,393, the problem was dealt with on the basis of the Massachusetts law. See Sturges, note 19,supra;Note, Judicial Review of Arbitration Awards on the Merits, 63 Harv. L. Rev. 681, 685, Award Based on Erroneous Rule; Cox, The Place of Law in Labor Arbitration, XXXIV Chicago Bar Rec. 205. ↩
  26. Page 437 Arbitration Act, 1950, 14 Geo. VI, c. 27, § 21, 29 Halsbury's Statutes of England (2d ed.) p. 106. ↩
  27. Page 437 Cf. notes 66 Harv. L. Rev. 1326; 53 Col. L. Rev. 735; 41 Georgetown L. J. 565; 62 Yale L. J. 985. ↩
  28. Page 437 See also,Krengerv.Pennsylvania R. Co.,174 F.2d 556;Akerlyv.New York Cent. R. Co.,168 F.2d 812. ↩
  29. Page 437 § 5 of the Federal Employers' Liability Act,35 Stat. 66,45 U.S.C. § 55, provides: "Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void . . . ." ↩
  30. Page 437 See H.R. Rep. No. 1386, 60th Cong., 1st Sess. 6. CompareB. O. S. R. Co. v.Voigt,176 U.S. 498. ↩
  31. Page 438 Cf.Callenv.Pennsylvania R. Co.,332 U.S. 625,631. ↩
  32. Page 438Brooklyn Savings Bankv.O'Neil,324 U.S. 697,707,714. ↩
  33. Page 438 Cf.Wilkov.Swan,201 F.2d, at 444. ↩
  34. Page 439 Under the rules of the American Arbitration Association, available to the plaintiff under his contract, the procedure for selection of arbitrators is as follows:

    The Association submits a list of potential arbitrators qualified by experience to adjudicate the particular controversy. In the City of New York, the list would be drawn from a panel of 4,400 persons, 1,275 of whom are lawyers. Each party may strike off the names of any unacceptable persons and number the remaining in order of preference. The Association then designates the arbitrators on the basis of the preferences expressed by both parties. See "Questions and Answers," Pamphlet of American Arbitration Association. In short, those who are charged to enforce the rights are selected by the parties themselves from among those qualified to decide. ↩