Should There Be A Difference In Enforcing Arbitration, Forum-Selection, and Jury Waiver Clauses?
The Texas Supreme Court has not really discussed why there are different standards for contractual jury waivers than for arbitration agreements or forum-selection clauses. However, in In re Prudential the Court clearly stated that contractual jury waivers were less intrusive than arbitration agreements and forum-selection clauses. One reason that arbitration clauses are favorably viewed is that there are federal and state statutes extolling arbitration’s virtue and there is no such statute for jury waivers. Of course, a statute should not be able to trump a constitutional right. If the “knowing and voluntary” requirement is constitutional, it should apply to arbitration agreements notwithstanding statutory enactments. However, it does not. Arbitration agreements are judged as contractual clauses, and there merely has to be a showing of mutual assent. Arbitration agreements are valid and enforceable without any showing of voluntary and knowing waiver and there is no conspicuousness requ
