concurring.
Although I agree with Judge Greenberg’s conclusion that the Delaware Securities Commissioner cannot seek rescission as a remedy under 6 Del.C. § 7325(b), I write separately because I arrive at this result by way of contract law rather than the doctrine of preemption.
When Congress enacted the Federal Arbitration Act (FAA), it rejected the traditional hostility of the courts towards arbitration as a remedy in civil disputes and emphasized a strong federal policy in favor of arbitral dispute resolution in cases where a contract exists evidencing a transaction involving commerce. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). In Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), a case similar to the one sub judice in that it involved a dispute over a purchase of securities through a broker-dealer, the Court held that the FAA requires district courts to compel arbitration of pendent arbitrable claims, even where the result would be the possible inefficient maintenance of separate proceedings in different forums. The Court observed:
The preeminent concern of Congress in passing the Act was' to enforce private agreements into which parties had entered, and that concern requires that we rigorously enforce agreements to arbitrate ... at least absent a countervailing policy manifested in another federal statute. By compelling arbitration of state-law claims, a district court successfully protects the contractual rights of the parties and their rights under the Arbitration Act.
Id. at 221, 105 S.Ct. at 1242-43.
Significantly, the Court dwelt upon the necessity of enforcing the contractual rights of the parties under the agreement to arbitrate, also observing that “arbitration is not a judicial proceeding.” Id. at 222, 105 S.Ct. at 1243 (citing McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984)). Thus, the right of a party to enforce an arbitration agreement under the FAA depends not upon the federal doctrine of preemption, but upon the traditional duty of the courts to protect the contractual rights of the parties.
In the present case, Olde’s investors’ account agreement with the Engelhardts contained a provision stating:
You agree to submit any and all controversies or claims arising out of this agreement to arbitration to be conducted according to the rules and procedures of the New York Stock Exchange, Inc. (NYSE) or the National Association of Securities Dealers, Inc. (NASD) as you may elect_
The agreement further provides, “The parties are waiving their right to seek remedies in court, including the right to a jury trial.” Recently, in Gilmer v. Interstate/Johnson Lane Corp., — U.S. —, —, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991) (citations omitted), the United States Supreme Court stated:
It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA.... [B]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.
Therefore, Olde and the Engelhardts lawfully bound themselves by the provisions of the agreement to arbitrate claims arising out of their securities transactions.
As noted by Judge Greenberg, section 7325’s remedy of rescission would interfere with the contractually created arbitration agreement in this case. To the extent that the Engelhardts attempted an “end run” around the terms of the arbitration agreement by seeking relief in a state administrative proceeding, the district court properly restrained them. Federal courts will not *216“permit a party to a contract to circumvent an arbitration clause by commencing litigation in a state court.” In re Mercury Constr. Corp., 656 F.2d 933, 941 (4th Cir.1981).
Finally, the mere involvement of an administrative agency in the enforcement of a statute is not sufficient to preclude arbitration. For example, the Securities Exchange Commission is heavily involved in the enforcement of the Exchange Act of 1934 and the Securities Act of 1938, but we have held that claims under both of these statutes may be subject to compulsory arbitration. See McMahon; Rodriguez de Quijas.
Gilmer, — U.S. at -, 111 S.Ct. at 1653.
My disagreement with Judge Greenberg stems from my belief that the district court’s injunction should not be based on preemption doctrine, but rather the law of contracts. The fundament of Olde’s right to settle the Engelhardts’ demand for rescission of the securities transaction by arbitration is the arbitration provision contained in the inves-’ tors’ account contract, not the application of the doctrine of preemption.
“[FJederal pre-emption of state law can occur in three types of situations: where Congress explicitly pre-empts state law, where pre-emption is implied because Congress has occupied the entire field and where pre-emption is implied because there is an actual conflict between federal and state law.” Pokorny v. Ford Motor Co., 902 F.2d 1116, 1120 (3d Cir.1990) (citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988)), cert. denied, 498 U.S. 853, 111 S.Ct. 147, 112 L.Ed.2d 113 (1990).
The FAA “contains no express pre-emptive provision, nor does it reflect a congressional intent to occupy the entire field of arbitration.” Volt Info. Sciences, Inc. v. Stanford University, 489 U.S. 468, 477, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989). Nor has Congress occupied the entire field of securities regulation. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 135, 94 S.Ct. 383, 393-94, 38 L.Ed.2d 348 (1973). The FAA, therefore, preempts a state securities law only “to the extent that it actually conflicts with federal law.” Volt, 489 U.S. at 477, 109 S.Ct. at 1255.
In the case sub judice, however, the federal law and the state law do not conflict. The Delaware Statute does not even deal with arbitration, which is the subject of the FAA. Rather, the conflict in this case arises between the state statute, as it relates to rescission, and the parties’ contractually created right to arbitrate disputes relating to the securities transaction. The FAA becomes relevant only as it protects the enforcement of the contractual right to arbitrate. Thus, there is no conflict for preemption purposes between a state law and a federal law in this case, but rather a partial remedial conflict between a state law and a contract. Cf. Ostemeck v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 841 F.2d 508, 510 (state statute precluding enforcement of an agreement to arbitrate conflicts with FAA).1
Therefore, for the foregoing reasons I would affirm the district court’s order enjoining the Delaware Securities Commissioner from pursuing the remedy of rescission of the claims which are subject to the arbitration agreement between Olde and the Engel-hardts. I agree with Judge Greenberg that the district court was not required to abstain from enjoining the Commissioner’s pursuit of rescission.
. The agreement to arbitrate cannot usurp a state's public interest in enforcing its criminal laws for securities transactions violations or its laws enacted under its police power to protect the public interest generally. "The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole.”- Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 361, 93 L.Ed.2d 216 (1986). Therefore, the district court was correct not to enjoin the Commissioner from seeking other penal remedies against Olde besides rescission.