In its letter of objection, Citibank denied that there was a “real” sharing of the circuit. Even in the three circuits considered to be a minority by Stok, prejudice is at least a “relevant factor” in the applicable waiver analysis. Citibank submitted that “without mentioning prejudice as an element, [these three circuits] to varying degrees, they consider them to be an essential part of the waiver decision. It`s a semantics, not a difference in content. However, Citibank`s position was untenable. It is simply not plausible to say that there is no difference between an absolute import between an absolute requirement for a certain degree of prejudice before finding an abandonment, and there is no precondition for prejudice before giving up. The fact that the minority groups identified by Stok could take prejudice into account if they exist does not change the fact that they are always open to a waiver if there is no prejudice – circumstances that would completely exclude an exemption decision in the majority circuits. As Stok rightly pointed out in his letter to Reply, the 7th Circle (of which Justice Richard Posner, one of the main supporters, held that prejudice is not necessary to establish a waiver) explicitly acknowledges that it is a minority in this matter. The mere existence of an arbitration agreement is not even sufficient to secure the release of a vessel or to put an end to maritime action. A defendant wishing to be the subject of an arbitration agreement can, at best, obtain only the stay of the proceedings and probably the release of the vessel, providing satisfactory security. The New Jersey Supreme Court refused to allow a respondent to benefit from his refusal to pay arbitration fees to Roach v. BM Motoring, LLC, 2017 WL 931430 (NJ March 9, 2017).
Currently in international private law, there is recognition that the jurisdiction of the court exists, but this does not prohibit the court from awarding damages (or anti-arbitration order or judgment order) for violation of a foreign arbitration or jurisdiction clause. Although Stok Associates, P.A., v. Citibank, N.A., emerged prior to the opportunity to fully inform the issue at issue, Stok briefly referred to the merits of his petition and called for the requirement of prejudice to be completely abandoned. Recalling that the Supreme Court stated that the FAA`s objective was to “reverse long-standing judicial hostility to arbitration agreements and to put [arbitration agreements] on the same basis as other contracts,” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 80 (highlighting 2000), Stok argued that a requirement to establish prejudice before giving up goes beyond what is a “contractual clause … By the courts in every arbitration decision. Stok argued that a strong rule (the total eradication of the Prejudice Inquiry) was the only way to solve the problem: “Creating a simple standard for the waiver of an arbitration tribunal, if you participate wholeheartedly in litigation, will allow the monumental waste of scarce judicial and partisan resources] to disappear – exactly the goal that the FAA should achieve. I take your view on access to the court as a human and constitutional right in relation to the damages caused by a foreign arbitration clause. This is an underlying issue that has caused controversy in Nigerian courts with respect to the violation of foreign jurisdiction clauses.