In the recent case of Albion Energy Ltd v Energy Investments Global BRL [2020] EWHC 301 (Comm) (available here), the English High Court refused to interpret the proceedings under Section 9 of the Arbitration Act 1996 in a case involving competing jurisdiction clauses and arbitration clauses. In 2014, in Iskanian v. CLS Transport, a HGV driver filed a class action arguing that overtime is not paid and that breaks are made.32 In this case, the worker was the subject of a work agreement that included both a compromise clause and a waiver of collective or representation actions. The California Supreme Court ruled that the waiver was not enforceable, as applied to paga claims. Referring to the counting sentence that ”[a]nyone may waive the benefit of a law intended exclusively in its favour. But a law enacted for a public reason cannot be violated by a private agreement,” she said, that the paga remedies were representative actions and that, therefore, the right to bring the complaint to court could not be quashed. Nothing in this Section X prevents either the majority sellers or the parents of purchasers from immediately requesting the use of a competent court to: (i) enforce the conditions or arbitral award set out in this Section X; (ii) seek a referral action, injunction or other fair exemption (including special benefits) where such an exemption is necessary to protect their interests; (iii) to grant recovery of certain assets. All arbitration issues are strictly confidential. Statements of waiver of class remedies appear to be widespread in labour arbitration proceedings.
In a 2015 survey of 481 practising arbitrators, Colvin and Gough, arbitrators asked for the provisions of arbitration agreements in the cases they had decided. The respondents indicated that class action waivers were included in 52 per cent of the agreements where they had ruled.46 In Mercato Sports v. Everton[1], the English High Court found that two parties were bound by a tacitly horizontal contract with a compromise clause. As a result, it granted a stay of the procedure under section 9 of the Arbitration Act 1996 (`S9 AA 1996`). In that case, a football agent (the complainant)[2] sought payment to draw a player`s attention to Everton (the defendant) and allowed him to sign the player. While the applicants and defendants did not have a direct contractual relationship, the court found that the two were bound by the rules of the football association (hereafter the RULES of the FA), in particular the arbitration agreement in it.
