Legal Memorandum: Waiver of a Right to a Jury Trial in VI

Issue: Must a waiver of a right to a jury trial in favor of arbitration be shown to have been voluntary in order to be enforceable, even if to do so seems contrary to the intent of the Federal Arbitration Act (FAA)?

Area of Law: Alternative Dispute Resolution
Keywords: Arbitration; Waiver of a right to jury trial
Jurisdiction: Virgin Islands
Cited Cases: 149 F.3d 277; 110 F.3d 222; 304 U.S. 458; 546 U.S. 1030; 400 F.3d 370; 340 F. Supp. 2d 590; 497 F.3d 355; 821 F.2d 191; 500 U.S. 20; 301 U.S. 389; 146 F.3d 175; 283 F.3d 595
Cited Statutes: 5 V.I.C. § 815
Date: 10/01/2007

The Virgin Islands statute that requires knowing and voluntary waivers of constitutional rights is not specific to arbitration agreements.  Its language applies generally to all contracts, across a wide variety of contexts.  The statute has strong roots in federal law establishing the waiver doctrine, which arose to deal with waivers of fundamental rights in any contract, which applies generally, and which predates the FAA.  See Johnson v. Zerbst, 304 U.S. 458 (1938); Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 389 (1937); Ohio Bell Tel. Co. v. Public Util. Comm’n, 301 U.S. 292 (1937).  While the courts have refused to enforce state statutes and case law that are applicable only to arbitration agreements instead of all types of contracts, this rule cannot be used to refuse to apply 5 V.I.C. § 815.  Section 815 is applicable, like all laws requiring that the waiver of a constitutional right be knowing and voluntary, to any type of contract in which a party purportedly waives a constitutional right.  Such rights include the right to speak, the right to sue, and the right to notice and hearing, as well as the right to a jury trial.  See Lake James Cmty. Volunteer Fire Dep’t, Inc. v. Burke County, 149 F.3d 277, 280 (4th Cir. 1998).

The principle stated in Perry v. Thomas, 482 U.S. 483, 492 n. 9 (1987), that state laws that invalidate arbitration agreements specifically are preempted by the FAA, […]

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