<35>World Finance argues that the arbitration agreements at issue are governed by the FAA, which provides that arbitration agreements «shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.» 9 U.S.C. § 2. While we acknowledge the controlling nature of that principle of law, we disagree that it can save the one-sided arbitration scheme in this case.
<36>We recently held in Fiser that the FAA did not preclude our addressing and invalidating an arbitration agreement’s class action ban, because our holding was based on neutral and generally applicable New Mexico public policy contract principles. 2008-NMSC-046, ¶ 23. Id. ¶¶ 2-4. We held the class action ban was contrary to New Mexico public policy because «[t]he opportunity for class relief and its importance to consumer rights is enshrined in the fundamental policy of New Mexico and evidenced by our statutory scheme.» Id. ¶ 13. The arbitration agreement in Fiser that banned any form of class action relief was unenforceable because it would have been «tantamount to allowing Defendant to unilaterally exempt itself from New Mexico consumer protection laws.» Id. ¶ 21. Because the Fiser ruling rested on a New Mexico doctrine that existed for the revocation of any contract, the FAA did not preclude our examination of the enforceability of the suspect arbitration clause. See id. ¶ 23 («?[G]enerally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening [the FAA].'» (quoting Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996))).
In the Fiser, a pc name brand debated that a purchaser was not allowed to document a category step suit to own misrepresentation on sale regarding servers, in which for each similarly mainly based individual suffered damage out-of lower than twenty cash
<37>As in Fiser, our invalidation of these arbitration agreements is based on a generally applicable New Mexico unconscionability analysis. See Perry v. Thomas, 482 U.S. 483, 493 n.9 (1987) («[S]tate law, whether of legislative or judicial origin, is applicable [and does not contravene the FAA] if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.»).
All of our unconscionability data, which is used in the same way in order to arbitration clauses as to your most other conditions away from an agreement, was thus perhaps not inconsistent to the determines of one’s FAA
<38>New Mexico’s legal doctrine of contractual unconscionability, like that of other jurisdictions, was not developed to target or invalidate this or any other arbitration agreement. See id. («A court may not, then, in assessing the rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it otherwise construes nonarbitration agreements under state law.»). It is not a license for businesses to take advantage of consumers by the imposition of one-sided, unfair, and legally unconscionable arbitration schemes. We will not allow our courts to be used to enforce unconscionable arbitration clauses any more than we will allow them to be used to enforce any other unconscionable contract in New Mexico.
<39>There are two possible remedial actions we can take to give effect to our holding that the one-sided arbitration provisions separately attached to the loan agreements are unenforceable: We can strike the arbitration provisions in their entirety, or we can attempt to refashion parts of them into a fair and balanced arbitration arrangement. In Padilla, we stated:
When the a binding agreement otherwise title thereof try unconscionable at that time the new bargain is made a court may decline to enforce the brand new offer, or may demand the rest of new offer without any unconscionable term, otherwise will get so limit the application of one unconscionable name due to the fact to avoid any unconscionable effect.
