Fitz, 118 Cal.App.4th at 726, included an arbitration agreement with a very restrictive provision of Discovery that violated Armendariz`s minimum requirements for Discovery. The employer asserted that its arbitration agreement contained, by reference, the AAA rules that exceeded the inappropriate investigative limits in the agreement itself. (Id. at 720-721.) Given that the AAA rules were not joined and that the worker had to “go to another source to find out the full effects of the arbitration agreement,” the Court of Appeal rejected the employer`s efforts to save the otherwise unscrupulous provision. (Id. at 721.) Fitz noted that admission of the AAA rules, if not provided to the employee, “would not give employees adequate notification of the current rules” [of the discovery]. (Ibid.) In some cases, at the stage of appointing an arbitrator under S.11 of the Arbitration and Conciliation Act, 1996 (The Act) or the reference to arbitration procedure on page 8 of the Act, the court may find that the underlying contract is void. In such cases, the question arises as to whether the arbitration agreement survives after such a judicial declaration. In accordance with Article 16(1) of the Act, which is based on the principle of jurisdiction-jurisdiction, the arbitral tribunal would have jurisdiction to rule on its own jurisdiction, including the decision on any objection to the validity of the arbitration agreement.
The law emphasizes that an arbitration clause that is part of a contract is treated as an agreement independent of the terms of the contract. It also provides that the decision of the arbitral tribunal on the nullity of the contract shall not result in the ineffectiveness of the arbitration clause. M. Armendariz identified two political reasons preferring severance pay to nullity: (1) the maintenance of the contractual relationship; and (2) prevent the parties from obtaining undeserved advantages or suffering undeserved disadvantages as a result of nullity, in particular where there is at least some performance of the contract. (Id. at 123-124.) There is a good chance that the working relationship between your client and her employer is already over, which calls into question the first political concern. Armendariz requires that, if the employment is subject to compulsory arbitration, the employer may not impose on the worker any fees (or charges) that he would not normally have to pay if the case were tried by a court. . . .