"Should a Federal Court Stand Idly by When a Foreign Arbitral Commission Issues an Order Restricting the Speech of a Private Party?"

"Actually, yes."

|The Volokh Conspiracy |

An interesting D.C. federal district court decision from last Fall that I just ran across, in Sharp Corp. v. Hisense USA Corp. The facts:

[T]wo Asian television manufacturers, Sharp and Hisense, entered into a 2015 licensing agreement under which Hisense would make and market televisions bearing Sharp's name. In 2017, alleging that Hisense had violated various regulatory standards and failed to maintain the quality of its television sets, Sharp terminated the agreement. A week later, under a provision of the licensing agreement providing that all disputes would be arbitrated by the Singapore International Arbitration Center, Hisense filed an arbitration action there. Among other relief, Hisense sought an emergency order requiring that Sharp abide by the agreement while the full arbitration was pending and enjoining it from making disruptive or disparaging statements about Hisense or the licensing dispute. In May 2017, an emergency arbitrator in Singapore issued an interim award granting that injunctive request.

The short version of the court's free speech analysis:

[T]his action boils down to a dispute over a private agreement — precisely the type of controversy that courts have held is not subject to the First Amendment. "Arbitration is a private self-help remedy," and "[w]hen arbitrators issue awards, they do so pursuant to the disputants' contract — in fact the award is a supplemental contract." The emergency award in this case is the result of a private agreement between two willing, sophisticated parties. In entering into the arbitration agreement, Sharp subjected itself to the full range of restrictions articulated under the SIAC rules, which were expressly incorporated into the licensing agreement.

I'm not sure this would be exactly right in a case where the court actually enforces an arbitral order; I think there would be state action restricting speech, but likely constitutionally permissible state action because the parties had contractually waived their speech rights, see Cohen v. Cowles Media Co. (1991) (a case involving a damages award, but with logic that I think would also apply to injunctions, see, e.g., Perricone v. Perricone (Conn. 2009)). But the court's bottom-line result seems right to me; and I liked the court's opening lines (quoted in the title and the subtitle of this post).

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  1. This post , doesn’t present the real issue . Just parroting some texts . The real issue ( On merits ) is :

    ” whether this case does , in fact , involve state action , and , if not , whether Sharp nonetheless may assert a claim that the emergency order offends U.S public policy ”

    End of quotation :

    The court erred it seems , in not differentiating well and coherently , between public policy , and constitutional rights . For even if first amendment , depends critically on state action , the latter , is not vital element for having public policy interest . First amendment has indeed the purpose to restrain government , but , as such , finally ,for the sake indeed of public policy , which is :

    The right for free speech granted generally speaking to citizens . Whether that does grant Sharp the remedy in such case , is another issue .

    Thanks

    1. Seriously, is your keyboard broken? Or do you just not know how punctuation works?

      1. It seems that you are indeed the same psychopath after me . Now , don’t imagine , that adding now , any moronic remark about punctuation , would save your ass . It wouldn’t !! I shall reach you !! trust your Christ !! just for you and for readers here , I shall quote your previous one , here ( ” The Case of the Rabid Mongoose ” ) :

        ” Is your keyboard broken?”

        Now , you do imagine , that adding moronic remark concerning punctuations , would grant you any relief . It wouldn’t dude !! For you are already caught , caught in and within !! It is a matter of time , I shall get my hand on you . rest assured !!

        P.S : Reading my comments , one could clearly suggest , that I am not a person , to hang around with . But you are that much stupid , that even this time , while observing systematic handling of punctuations and comas , a reasonable and polite person , would ask first ,is there any particular reason for it ( surely not randomly done ) . But first you try to bite , you have prefixed role here . Next time , don’t bother to add the missing link to your comment .

        1. You do you. If you would care to share your thinking on the punctuation system used, go ahead.

          But you see how your style might be seen as a little out of sync with the norm. While there’s nothing wrong with that per se, I’d like to offer my heartfelt advice. Please don’t take this the wrong way, but it would appear you might be experiencing some “magical thinking”. Maybe it’s related to a variety of current events. This is not to suggest you are in the right or wrong. But speaking from experience, I really wish someone had suggested my talking with someone to help sort out my thoughts (a long time ago). There’s no shame in reaching out just to talk. Take care of yourself.

        2. If you would want some explanation for the suggestion, please see below.

          “the same psychopath after me”
          It is an irrational thought to think an anonymous commenter on a blog is after you.

          ” I shall reach you”
          An irrational thought, how are you going to reach an anonymous commenter?

          Maybe your thought is that a “language game” is being played, but you shouldn’t take that notion too seriously. I’m thinking your just assuming people know what you are talking about, but this unnecessary and is not a healthy assumption to make.

  2. Assuming that a court were enforcing the arbitral order, though, might the issue be whether the waiver of free speech rights was sufficiently clear and unmistakable to qualify under the principles applied in Perricone and similar cases?

    Sure, there was an agreement to allow an arbitrator to address contract disputes between the parties, but is there are express reference to giving up the right to criticize (or giving determination or the right to criticize to the private decision-maker?). I would want to see the arbitration provision before making a judgment on that question,

    Another issue could be whether the claim on which the gag order was entered amounted to a defamation claim, thus subjecting the award to scrutiny under the libel tourism statute (not clear to me that Sharp raised that issue).

    Had Sharp’s appeal to the DC Circuit not been dismissed, these issues could well have been worth an amicus brief.

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