dissenting.
I disagree with the court’s conclusion that the Federal Arbitration Act, 9 U.S.C. § 2, preempts 6 Del.Code Ann. § 7325(b) for essentially the same reasons articulated in Judge Rosenn’s concurrence. There is no conflict between federal and state law because, as Judge Rosenn notes, the FAA protects the enforcement of the contractual right to arbitrate. Where there has been an allegation of securities fraud, section 7325(b) empowers the Delaware Securities Commission*217er to seek rescission at his discretion and in the interest of the public; it says nothing about the validity of the arbitration agreement or the arbitrability of the dispute between Olde Discount and the Engelhardts. Since section 7325(b) does not “require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration,” Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1 (1984), the FAA does not preempt the Delaware statute.
I depart from the reasoning of the concurrence, however, to the extent it concludes that the Engelhardts have the capacity to contract away under Delaware law the Commissioner’s authority to institute administrative proceedings and to seek remedies against securities firms doing business in Delaware. The essence of Olde Discount’s argument is that there is no distinction between the Engelhardts’ civil suit in their own interest to seek a compensatory award and the Commissioner’s administrative actions in the public interest to seek appropriate equitable or punitive measures. This argument is unpersuasive in light of the statutory scheme.
The Delaware Securities Act was enacted “to prevent the public from being victimized by unscrupulous or overreaching broker-dealers, investment advisers or agents in the context of selling securities or giving investment advice, as well as to remedy any harm caused by securities law violations.” 6 Del. Code Ann. § .7301(b) (emphasis added). The Commissioner administers the statute and serves this policy. Among other things, he may “deny, suspend or revoke any registration if he finds that the order is in the public interest,” and he may in his discretion bring an action “to temporarily restrain or to enjoin the acts or practices ... [as well as seek] such other ancillary relief as is in the public interest-” Id. §§ 7316(a), 7320 (emphasis added). In section 7325(b), the Delaware legislature gave the Commissioner the exclusive power to bring administrative proceedings in which he may order the violator “to pay restitution and costs (or to rescind the transaction or transactions and pay costs) if the Commissioner- finds it in the public interest. ... ” (Emphasis added.) And in section 7323(a), the legislature also gave “the person” who is a victim of securities fraud a nonexclusive, private cause of action in law or equity.
Thus, the Delaware statutory scheme makes clear that the Commissioner is not a surrogate for a plaintiffs attorney, but is a public official .who administers the state’s blue sky laws “in the public interest” and is endowed with broad enforcement and rule-making powers. See Blinder, Robinson & Co. v. Bruton, 552 A.2d 466, 475 (Del.1989) (“The Commissioner has discretion to impose any penalty deemed necessary to protect the public interest and further the Act’s prophylactic purpose.”). Although the Engelhardts’ and the Commissioner’s suits arise from the same transaction, their respective right or power to sue arises from two separate and distinct statutory provisions.
The arbitration agreement between the Engelhardts and Olde Discount provides that the Engelhardts must “submit any and all controversies or claims arising out of this agreement to arbitration.” It also provides, “The parties are waiving their right to seek remedies in court, including the right to a jury trial.” Under the FAA and this arbitration agreement, there is no doubt that the Engelhardts cannot enforce a claim for legal damages or equitable relief under section 7323(a) in a judicial forum. But that is not at issue in this appeal because nothing in the Delaware laws precludes the Engelhardts and Olde Discount from arbitrating.
Here, Olde Discount contends, and the opinion of the court agrees, that the arbitration agreement, between it and the Engel-hardts precludes the Commissioner, acting under the authority of the Delaware legislature, from seeking appropriate remedies and sanctions in the public interest if the Engel-hardts have also asked for the “same” relief in their civil complaint. Thus, while this case concerns rescission as a remedy, had the Engelhardts sought injunctive relief as well as money damages in arbitration, there is no reason under the court’s opinion why these private parties could not have also contracted away the Commissioner’s authority under section.7320 to seek an injunction against Olde Discount.
*218The Commissioner cannot be bound by an agreement to which he neither agreed nor was a party. One cannot bargain away that which one does not possess; since the power to sue under section 7325(b) and seek appropriate equitable remedies on behalf of the State of Delaware and in the public interest belongs exclusively to the Commissioner, that power cannot be compromised by an agreement between private individuals. Cf. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19-21, 103 S.Ct. 927, 939, 74 L.Ed.2d 765 (1983) (in a multiparty/claim case, arbitration agreement will be enforced as to those parties and claims subject to the agreement despite piecemeal litigation in the arbitral and judicial forums). Further, the Commissioner’s authority to sue and seek remedies exists independently of a plaintiffs right to sue and thus is not derivative of the Engelhardts’ rights. See 6 Del. Code Ann. § 7319 (“The Commissioner in his discretion may make such public or private investigations within or outside of this State as he deems necessary_”). See also Gilmer v. Interstate/Johnson Lane Corp., — U.S. -, -, 111 S.Ct. 1647, 1653, 114 L.Ed.2d 26 (1991) (“In any event, the EEOC’s role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA ‘from any source,’ and it has independent authority to investigate age discrimination”). Cf. Isidor Paiewonsky Assocs. v. Sharp Properties, Inc., 998 F.2d 145 (3d Cir.1993) (a subtenant who was not a party to an arbitration agreement was bound by the conclusions of the arbitrator because the subtenant and tenant are in privity and thus the subtenant’s rights are derivative of the tenant’s under traditional landlord-tenant laws).
The argument that section 7325(b) is “preempted” by the FAA or that the Commission is “contractually bound” by the arbitration agreement rests on the unsound assumption that legal damages by the Engel-hardts and rescission sought by the Commissioner in the public interest are in essence the same remedies. In Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), although regulations provided that a landlord could not be required to make a tender of illegally collected rent if the suit was brought by any person who had commenced an action against the defendant under Section 205(e) of the Emergency Price Control Act of 1942, a federal agency brought suit against the landlord and sought restitution of illegally collected rent under the authority of § 205(a) of the statute. The Supreme Court considered whether a federal district court had jurisdiction, in an enforcement proceeding brought by a federal agency under § 205(a), to order restitution of illegally collected rents. The Court held that it did, and reasoned:
It is' true that § 205(e) authorizes an aggrieved purchaser or tenant to sue for damages on his own behalf.... To the extent that damages might properly be awarded by a court of equity in the exercise of its jurisdiction under § 205(a), § 205(e) supersedes that possibility and provides an exclusive remedy relative to damages. It establishes the sole means whereby individuals may assert their private right to [legal] damages_ Moreover, a court giving relief under § 205(e) acts as a court of law rather than as a court of equity. But with the exception of damages, § 205(e) in no way conflicts with the jurisdiction of equity courts under § 205(a) to issue whatever “other orders” may be necessary to vindicate the public interest, to compel compliance with the Act and to prevent and undo inflationary tendencies. •
Restitution, which lies within that equitable jurisdiction, is consistent with and differs greatly from the damages and penalties which may be awarded under § 205(e). When the Administrator seeks restitution under § 205(a) he does not request the court to award statutory damages to the purchaser or tenant or to pay to such person part of the penalties which go to the United States treasury in a suit by the Administrator under § 205(e). Rather he asks the court to act in the public interest by restoring the status quo and ordering the return of that which rightfully belongs to the purchaser or tenant. Such action is within the recognized power and within the highest tradition of a court of equity. Thus it is plainly unaffected by the provisions of § 205(e).
*219328 U.S. at 399-403, 66 S.Ct. at 1090-91 (emphasis added and citations omitted). Thus, legal damages and equitable relief, such as restitution and rescission, are different forms of relief, serving different interests and arising from different powers of the court. Even if an arbitrator decides that the Engelhardts are not entitled to legal damages, that decision neither conflicts with nor precludes a court of equity from granting the remedy of rescission to the Engelhardts in the interest of the public.
The Supreme Court recognized this difference in the arbitration context. In Gilmer, the Supreme Court considered whether a claim under the Age Discrimination in Employment Act of 1967 (ADEA) can be subject to arbitration under the FAA. The Court held that ADEA claims were arbitrable. The Court found unpersuasive the argument that arbitration would undermine the role of the EEOC in enforcing the ADEA. It reasoned, “An individual ADEA claimant subject to an arbitration agreement will still be free to file a charge with the EEOC, even though the claimant is not able to institute a private judicial action.” — U.S. at -, 111 S.Ct. at 1663. Furthermore, “it should be remembered that arbitration agreements will not preclude the EEOC from bringing actions seeking class-wide and equitable relief.” Id. — U.S. at -, 111 S.Ct. at 1655 (emphasis in original). Equitable relief includes such remedies as injunction and rescission. Porter, 328 U.S. at 399-403, 66 S.Ct. at 1090-91.
I believe that the opinion of the court unlawfully transfers the authority vested in the Commissioner to private parties. Thus, the boundaries of what the Commissioner or any other agency with enforcement powers can or cannot do is not defined by statute, but is limited by the agreements of private individuals. I would hold that since section 7325(b) of the Delaware Securities Act expressly provides that the Commissioner may seek appropriate equitable relief against a violator of the state’s securities laws, he is not bound by a private arbitration agreement, nor need he refrain from seeking rescission in the public interest simply because a private party agreed to seek legal damages in an arbitral forum rather than a court of law. I therefore respectfully dissent.