During the appeal process, the 4th arrondissement found that a provision of the law would not automatically nullify an arbitration provision under the prospective clause and that “[t]he uncertainty as to whether the choice of foreign law would exclude the material remedies of the Confederation, the arbitrator should decide in the first place whether the choice of a party`s law would not be used.” 334 (citing Vimar Seguros y Reaseguros, S.A. v.M/V Sky Reefer , 515 U.S. 528, 540-41, 115 P.C. 2322, 132 L.Ed.2d 462 (1995) and Aggarao v. MOL Ship Mgmt. Co. , 675 F.3d 355, 371-73 (4 cir. 2012). “In such a case, the question of the will to release would only be ripe for a final decision if the Federal Court is asked to enforce the arbitrator`s decision.” Id. (Quotes omitted). BMO Harris argued that the Great Plains loan agreement was such an uncertain situation that required the District Court to defer the prospective waiver decision until it was asked to enforce the arbitrator`s decision. Id. at 335.
The court objected to the prospective nullifation of the legal rights of applicants at the federal and regional level only to the extent that the tribe, tribal credit agencies and tribal officials enjoy sovereign immunity. Although the arbitration decision repeatedly confirms that the tribe and tribal credit agencies enjoy and retain their right to sovereign immunity, such a claim turns out to be due to the offensive language emphasized in the Court`s analysis. (Agreement between 5 and 6th) In fact, the arbitration explains that if a consumer chooses to hold an arbitration somewhere other than on tribe land, “such a choice … cannot be construed in any way as lifting sovereign immunity or authorizing the application of a right other than the laws of the [tribe].” (Agreement to 6 to 4 (added).) The use of the “or” circuit breaker clearly expresses the intention of the Tribal Lending Entities to categorically reject the application of federal and regional law during arbitration, regardless of the extent to which the sovereign immunity of the tribes could protect them from action under those laws. Reading the language would not give meaning or effect to the words “or” that the Court must avoid. See paragraph 2 of Regulation (CEE) 1007/88 of the Council, 15.12.1988 203 cmt.b (Am. Law Inst. 2019) (“Given that an agreement is interpreted as a whole, it is considered at first that no part of it is superfluous.” The defendants argue that the arbitration provision “shows a clear intention to require arbitration, regardless of the material law that may ultimately apply,” and that the provision is therefore distinct from the agreements in force in the years at Hayes and Dillon. (Tribe Arb. Mm. 25.) The defendants insist on the language which states that “[i] f jede der [e] Schiedsbestimmungen die [e] is invalidated, the rest remains in force” as it shows the desire of the tribe to settle disputes with the concession, that the applicants should have the legal rights of the federal state and the federal states. (Tribe Arb.
Mm. 24-25 (under-call of the agreement at 6 . 8).) However, even if it is assumed that the language of separation creates an intention without disclosing the limits of the insulting clauses – a questionable point of disagreement – the defendants ignore the requirement in good faith.