61) The Fifth Circuit did not apply the FAA
saving clause the same way as the Seventh and Ninth Circuits.
134) The court also disagreed with the dissent's reading of Supreme Court precedent (135) and maintained that "the Supreme Court has repeatedly made clear [that] there is a limiting principle built into the FAA on what may be waived in arbitration: where substantive rights are at issue, the FAA's
saving clause works in conjunction with the other statute to prevent conflict.
First, the agreements plainly fall within the scope of the FAA's
saving clause because they can be invalidated on the basis of the general principle of illegality because they violate the NLRA.
This is admittedly a difficult task to coordinate through the Instrument because exceptions to the
saving clause are typically implemented via cross reference to other provisions within a single bilateral tax treaty.
17) The Court commented, "Although [section]2's
saving clause preserves generally applicable contract defenses, nothing in it suggests an intent to preserve state-law that stands as an obstacle to the accomplishment of the FAA's directives.
If, upon the other hand, the cause of action be not one of which a court of admiralty has jurisdiction, or if the suit be in personam against an individual defendant, with an auxiliary attachment against a particular thing, or against the property of the defendant in general, it is essentially a proceeding according to the course of the common law, and within the
saving clause of the statute of a common-law remedy.
82) Unlike in Whiting, the majority (including Justice Thomas) did not hesitate to read the
saving clause narrowly in light of purposes attributed to the federal statute.
An exception to the
saving clause is made in the case of students, trainees, teachers, and researchers.
action fell under an exception, such as the
saving clause, to
48) The case involved the National Traffic and Motor Vehicle Safety Act of 1966, (49) which contained both a preemption provision and a
saving clause that recognized the continued validity of state law.
32) Accordingly, this calls into question whether the
saving clause can be interpreted in favour of groups seeking separation.
In Geier, the Court found that a plaintiff's run-of-the-mill products liability claim against an auto manufacturer posed an undue obstacle to attaining the policies implicit in the federal auto safety program, even though the statute involved contained an express preemption clause and a
saving clause explicitly preserving state common law claims.
