Ge Energy Power Conversion Fr. Sas, Corp. v. Outokumpu Stainless USA, LLC

(Slip Opinion) OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GE ENERGY POWER CONVERSION FRANCE SAS,

CORP., FKA CONVERTEAM SAS v. OUTOKUMPU

STAINLESS USA, LLC, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 18–1048. Argued January 21, 2020—Decided June 1, 2020

ThyssenKrupp Stainless USA, LLC, entered into three contracts with

F. L. Industries, Inc., for the construction of cold rolling mills at

ThyssenKrupp’s steel manufacturing plant in Alabama. Each contract

contained a clause requiring arbitration of any contract dispute. F. L.

Industries then entered into a subcontractor agreement with peti-

tioner (GE Energy) for the provision of nine motors to power the cold

rolling mills. After the motors for the cold rolling mills allegedly failed,

Outokumpu Stainless USA, LLC (which acquired ownership of the

plant), and its insurers sued GE Energy in Alabama state court. GE

Energy removed the case to federal court under 9 U. S. C. §205. It then

moved to dismiss and compel arbitration, relying on the arbitration

clauses in the F. L. Industries and ThyssenKrupp contracts. The Dis-

trict Court granted the motion, concluding that both Outokumpu and

GE Energy were parties to the agreement. The Eleventh Circuit re-

versed. It concluded that the Convention on the Recognition and En-

forcement of Foreign Arbitral Awards (New York Convention or Con-

vention) allows enforcement of an arbitration agreement only by the

parties that actually signed the agreement and that GE Energy was a

nonsignatory. It also held that allowing GE Energy to rely on state-

law equitable estoppel doctrines to enforce the arbitration agreement

would conflict with the Convention’s signatory requirement.

Held: The New York Convention does not conflict with domestic equita-

ble estoppel doctrines that permit the enforcement of arbitration

agreements by nonsignatories. Pp. 3–12.

(a) Chapter 1 of the Federal Arbitration Act (FAA) does not “alter

2 GE ENERGY POWER CONVERSION FRANCE SAS

v. OUTOKUMPU STAINLESS USA, LLC

Syllabus

background principles of state contract law regarding the scope of

agreements (including the question of who is bound by them).” Arthur

Andersen LLP v. Carlisle, 556 U. S. 624, 630. The “ ‘traditional princi-

ples’ of state law” that apply under Chapter 1 include doctrines, like

equitable estoppel, authorizing contract enforcement by a nonsigna-

tory. Id., at 631–632.

The New York Convention is a multilateral treaty addressing inter-

national arbitration. One Article of the Convention addresses arbitra-

tion agreements—Article II—and one provision of Article II addresses

the enforcement of those agreements—Article II(3). Article II(3) pro-

vides that courts of a contracting state “shall . . . refer the parties to

arbitration” when the parties to an action entered into a written agree-

ment to arbitrate and one of the parties requests such a referral.

Chapter 2 of the FAA grants federal courts jurisdiction over actions

governed by the Convention. As relevant here, Chapter 2 provides that

“Chapter 1 applies to actions and proceedings brought under this chap-

ter to the extent that [Chapter 1] is not in conflict with this chapter or

the Convention.” 9 U. S. C. §208. Pp. 3–6.

(b) The application of familiar tools of treaty interpretation estab-

lishes that the state-law equitable estoppel doctrines permitted under

Chapter 1 do not “conflict with . . . the Convention.” §208. Pp. 6–11.

(1) The text of the New York Convention does not address whether

nonsignatories may enforce arbitration agreements under domestic

doctrines such as equitable estoppel. The Convention is simply silent

on the issue of nonsignatory enforcement. This silence is dispositive

because nothing in the Convention’s text could be read to conflict with

the application of domestic equitable estoppel doctrines. Article II(3)—

the only provision in the Convention addressing the enforcement of ar-

bitration agreements—contains no exclusionary language; it does not

state that arbitration agreements shall be enforced only in the identi-

fied circumstances. Given that the Convention was drafted against

the backdrop of domestic law, it would be unnatural to read Article

II(3) to displace domestic doctrines in the absence of such language.

This interpretation is especially appropriate because Article II contem-

plates using domestic doctrines to fill gaps in the Convention. Pp. 6–

7.

(2) This interpretation is confirmed by the Convention’s negotia-

tion and drafting history as well as “ ‘the postratification understand-

ing’ of signatory nations,” Medellín v. Texas, 552 U. S. 491, 507.

Cherry-picked generalizations from the negotiating and drafting

history cannot be used to create a rule that finds no support in the

treaty’s text. Here, to the extent that the Convention’s drafting history

sheds any light on the treaty’s meaning, it shows only that the drafters

sought to impose baseline requirements on contracting states so that

Cite as: 590 U. S. ____ (2020) 3

Syllabus

signatories would “not be permitted to decline enforcement of such

agreements on the basis of parochial views of their desirability or in a

manner that would diminish the mutually binding nature of the agree-

ments.” Scherk v. Alberto-Culver Co., 417 U. S. 506, 520, n. 15.

The postratification understanding of other contracting states—as

evidenced by the “[d]ecisions of the courts of other Convention signa-

tories,” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155,

175, and the “postratification conduct” of contracting state govern-

ments, Zicherman v. Korean Air Lines Co., 516 U. S. 217, 227—may

also serve as an aid to this Court’s interpretation. Here, numerous

sources indicate that the New York Convention does not prohibit the

application of domestic law addressing the enforcement of arbitration

agreements. These sources, however, are from decades after the fi-

nalization of the New York Convention’s text in 1958. This diminishes

their value as evidence of the original understanding of the treaty’s

meaning.

Finally, because the Court’s textual analysis and the Executive’s in-

terpretation of the Convention align here, there is no need to deter-

mine whether the Executive’s understanding is entitled to “weight” or

“deference.” Cf. Edelman v. Lynchburg College, 535 U. S. 106, 114–

115, n. 8. Pp. 7–11.

(c) The Court of Appeals may address on remand whether GE En-

ergy can enforce the arbitration clauses under equitable estoppel prin-

ciples and which body of law governs that determination. Pp. 11–12.

902 F. 3d 1316, reversed and remanded.

THOMAS, J., delivered the opinion for a unanimous Court. SOTOMAYOR,

J., filed a concurring opinion.

Cite as: 590 U. S. ____ (2020) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–1048

_________________

GE ENERGY POWER CONVERSION FRANCE SAS,

CORP., FKA CONVERTEAM SAS, PETITIONER v.

OUTOKUMPU STAINLESS USA, LLC, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 1, 2020]

JUSTICE THOMAS delivered the opinion of the Court.

The question in this case is whether the Convention on

the Recognition and Enforcement of Foreign Arbitral

Awards, June 10, 1958, 21 U. S. T. 2517, T. I. A. S. No.

6997, conflicts with domestic equitable estoppel doctrines

that permit the enforcement of arbitration agreements by

nonsignatories. We hold that it does not.

I

In 2007, ThyssenKrupp Stainless USA, LLC, entered into

three contracts with F. L. Industries, Inc., for the construc-

tion of cold rolling mills at ThyssenKrupp’s steel manufac-

turing plant in Alabama. Each of the contracts contained

an identical arbitration clause. The clause provided that

“[a]ll disputes arising between both parties in connection

with or in the performances of the Contract . . . shall be sub-

mitted to arbitration for settlement.” App. 171.

After executing these agreements, F. L. Industries, Inc.,

entered into a subcontractor agreement with petitioner GE

Energy Power Conversion France SAS, Corp. (GE Energy),

then known as Converteam SAS. Under that agreement,

2 GE ENERGY POWER CONVERSION FRANCE SAS

v. OUTOKUMPU STAINLESS USA, LLC

Opinion of the Court

GE Energy agreed to design, manufacture, and supply mo-

tors for the cold rolling mills. Between 2011 and 2012, GE

Energy delivered nine motors to the Alabama plant for in-

stallation. Soon thereafter, respondent Outokumpu Stain-

less USA, LLC, acquired ownership of the plant from

ThyssenKrupp.

According to Outokumpu, GE Energy’s motors failed by

the summer of 2015, resulting in substantial damages. In

2016, Outokumpu and its insurers filed suit against GE En-

ergy in Alabama state court. GE Energy removed the case

to federal court under 9 U. S. C. §205, which authorizes the

removal of an action from state to federal court if the action

“relates to an arbitration agreement . . . falling under the

Convention [on the Recognition and Enforcement of For-

eign Arbitral Awards].” GE Energy then moved to dismiss

and compel arbitration, relying on the arbitration clauses

in the contracts between F. L. Industries, Inc., and

ThyssenKrupp.

The District Court granted GE Energy’s motion to dis-

miss and compel arbitration with Outokumpu and Sompo

Japan Insurance Company of America. Outokumpu Stain-

less USA LLC v. Converteam SAS, 2017 WL 401951 (SD

Ala., Jan. 30, 2017).1 The court held that GE Energy qual-

ified as a party under the arbitration clauses because the

contracts defined the terms “Seller” and “Parties” to include

subcontractors. Id., at *4. Because the court concluded

that both Outokumpu and GE Energy were parties to the

agreements, it declined to address GE Energy’s argument

that the agreement was enforceable under equitable estop-

pel. Id., at *1, n. 1.

The Eleventh Circuit reversed the District Court’s order

compelling arbitration. Outokumpu Stainless USA, LLC v.

——————

1 The District Court later granted GE Energy’s motion to compel arbi-

tration with additional insurers. Outokumpu Stainless USA LLC v. Con-

verteam SAS, 2017 WL 480716 (SD Ala., Feb. 3, 2017).

Cite as: 590 U. S. ____ (2020) 3

Opinion of the Court

Converteam SAS, 902 F. 3d 1316 (2018). The court inter-

preted the Convention on the Recognition and Enforcement

of Foreign Arbitral Awards (New York Convention or Con-

vention) to include a “requirement that the parties actually

sign an agreement to arbitrate their disputes in order to

compel arbitration.” Id., at 1326 (emphasis in original).

The court concluded that this requirement was not satisfied

because “GE Energy is undeniably not a signatory to the

Contracts.” Ibid. It then held that GE Energy could not

rely on state-law equitable estoppel doctrines to enforce the

arbitration agreement as a nonsignatory because, in the

court’s view, equitable estoppel conflicts with the Conven-

tion’s signatory requirement. Id., at 1326–1327.

Given a conflict between the Courts of Appeals on this

question,2 we granted certiorari. 588 U. S. ___ (2019).

II

A

Chapter 1 of the Federal Arbitration Act (FAA) permits

courts to apply state-law doctrines related to the enforce-

ment of arbitration agreements. Section 2 of that chapter

provides that an arbitration agreement in writing “shall be

. . . enforceable, save upon such grounds as exist at law or

in equity for the revocation of any contract.” 9 U. S. C. §2.

As we have explained, this provision requires federal courts

to “place [arbitration] agreements ‘ “upon the same footing

as other contracts.” ’ ” Volt Information Sciences, Inc. v.

Board of Trustees of Leland Stanford Junior Univ., 489

U. S. 468, 474 (1989) (quoting Scherk v. Alberto-Culver Co.,

417 U. S. 506, 511 (1974)). But it does not “alter back-

ground principles of state contract law regarding the scope

of agreements (including the question of who is bound by

——————

2 Compare 902 F. 3d 1316, 1326 (CA11 2018), and Yang v. Majestic

Blue Fisheries, LLC, 876 F. 3d 996, 1001–1002 (CA9 2017), with Aggarao

v. MOL Ship Mgmt. Co., 675 F. 3d 355, 375 (CA4 2012), and Sourcing

Unlimited, Inc. v. Asimco Int’l, Inc., 526 F. 3d 38, 48 (CA1 2008).

4 GE ENERGY POWER CONVERSION FRANCE SAS

v. OUTOKUMPU STAINLESS USA, LLC

Opinion of the Court

them).” Arthur Andersen LLP v. Carlisle, 556 U. S. 624,

630 (2009).

The “traditional principles of state law” that apply under

Chapter 1 include doctrines that authorize the enforcement

of a contract by a nonsignatory. Id., at 631 (internal quota-

tion marks omitted). For example, we have recognized that

arbitration agreements may be enforced by nonsignatories

through “ ‘assumption, piercing the corporate veil, alter ego,

incorporation by reference, third-party beneficiary theories,

waiver and estoppel.’ ” Ibid. (quoting 21 R. Lord, Williston

on Contracts §57:19, p. 183 (4th ed. 2001)).

This case implicates domestic equitable estoppel doc-

trines. Generally, in the arbitration context, “equitable es-

toppel allows a nonsignatory to a written agreement con-

taining an arbitration clause to compel arbitration where a

signatory to the written agreement must rely on the terms

of that agreement in asserting its claims against the non-

signatory.” Id., at 200 (2017). In Arthur Andersen, we rec-

ognized that Chapter 1 of the FAA permits a nonsignatory

to rely on state-law equitable estoppel doctrines to enforce

an arbitration agreement. 556 U. S., at 631–632.

B

The New York Convention is a multilateral treaty that

addresses international arbitration. 21 U. S. T. 2517,

T. I. A. S. No. 6997. It focuses almost entirely on arbitral

awards. Article I(1) describes the Convention as applying

only to “the recognition and enforcement of arbitral

awards.” Id., at 2519. Articles III, IV, and V contain recog-

nition and enforcement obligations related to arbitral

awards for contracting states and for parties seeking the

enforcement of arbitral awards. Id., at 2519–2520. Article

VI addresses when an award can be set aside or suspended.

Id., at 2520. And Article VII(1) states that the “Convention

shall not . . . deprive any interested party of any right he

Cite as: 590 U. S. ____ (2020) 5

Opinion of the Court

may have to avail himself of an arbitral award in the man-

ner and to the extent allowed by the law or the treaties of

the country where such award is sought to be relied upon.”

Id., at 2520–2521.

Only one article of the Convention addresses arbitration

agreements—Article II. That article contains only three

provisions, each one sentence long. Article II(1) requires

“[e]ach Contracting State [to] recognize an agreement in

writing under which the parties undertake to submit to ar-

bitration all or any differences which have arisen or which

may arise between them in respect of a defined legal rela-

tionship, whether contractual or not, concerning a subject

matter capable of settlement by arbitration.” Id., at 2519.

Article II(2) provides that “[t]he term ‘agreement in writing’

shall include an arbitral clause in a contract or an arbitra-

tion agreement, signed by the parties or contained in an ex-

change of letters or telegrams.” Ibid. Finally, Article II(3)

states that “[t]he court of a Contracting State, when seized

of an action in a matter in respect of which the parties have

made an agreement within the meaning of this article,

shall, at the request of one of the parties, refer the parties

to arbitration, unless it finds that the said agreement is null

and void, inoperative or incapable of being performed.”

Ibid.

C

In 1970, the United States acceded to the New York Con-

vention, and Congress enacted implementing legislation in

Chapter 2 of the FAA. See 84 Stat. 692, 9 U. S. C. §§201–

208. Chapter 2 grants federal courts jurisdiction over ac-

tions governed by the Convention, §203; establishes venue

for such actions, §204; authorizes removal from state court,

§205; and empowers courts to compel arbitration, §206.

Chapter 2 also states that “Chapter 1 applies to actions and

proceedings brought under this chapter to the extent that

6 GE ENERGY POWER CONVERSION FRANCE SAS

v. OUTOKUMPU STAINLESS USA, LLC

Opinion of the Court

[Chapter 1] is not in conflict with this chapter or the Con-

vention.” §208.

III

We must determine whether the equitable estoppel doc-

trines permitted under Chapter 1 of the FAA, see supra, at

3–4, “conflict with . . . the Convention.” §208. Applying fa-

miliar tools of treaty interpretation, we conclude that they

do not conflict.

A

“The interpretation of a treaty, like the interpretation of

a statute, begins with its text.” Medellín v. Texas, 552 U. S.

491, 506 (2008). The text of the New York Convention does

not address whether nonsignatories may enforce arbitra-

tion agreements under domestic doctrines such as equitable

estoppel. The Convention is simply silent on the issue of

nonsignatory enforcement, and in general, “a matter not

covered is to be treated as not covered”—a principle “so ob-

vious that it seems absurd to recite it,” A. Scalia & B. Gar-

ner, Reading Law: The Interpretation of Legal Texts 93

(2012).

This silence is dispositive here because nothing in the

text of the Convention could be read to otherwise prohibit

the application of domestic equitable estoppel doctrines.

Only one Article of the Convention addresses arbitration

agreements—Article II—and only one provision of Article II

addresses the enforcement of those agreements—Article

II(3). The text of Article II(3) states that courts of a con-

tracting state “shall . . . refer the parties to arbitration”

when the parties to an action entered into a written agree-

ment to arbitrate and one of the parties requests referral to

arbitration. The provision, however, does not restrict con-

tracting states from applying domestic law to refer parties

to arbitration in other circumstances. That is, Article II(3)

provides that arbitration agreements must be enforced in

Cite as: 590 U. S. ____ (2020) 7

Opinion of the Court

certain circumstances, but it does not prevent the applica-

tion of domestic laws that are more generous in enforcing

arbitration agreements. Article II(3) contains no exclusion-

ary language; it does not state that arbitration agreements

shall be enforced only in the identified circumstances.

Given that the Convention was drafted against the back-

drop of domestic law, it would be unnatural to read Article

II(3) to displace domestic doctrines in the absence of exclu-

sionary language. Cf. Marx v. General Revenue Corp., 568

U. S. 371, 380–384 (2013).

This interpretation is especially appropriate in the con-

text of Article II. Far from displacing domestic law, the pro-

visions of Article II contemplate the use of domestic doc-

trines to fill gaps in the Convention. For example, Article

II(1) refers to disputes “capable of settlement by arbitra-

tion,” but it does not identify what disputes are arbitrable,

leaving that matter to domestic law. Mitsubishi Motors

Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 639,

n. 21 (1985). Similarly, Article II(3) states that it does not

apply to agreements that are “null and void, inoperative or

incapable of being performed,” but it fails to define those

terms. Again, the Convention requires courts to rely on do-

mestic law to fill the gaps; it does not set out a comprehen-

sive regime that displaces domestic law.

In sum, the only provision of the Convention that ad-

dresses the enforcement of arbitration agreements is Arti-

cle II(3). We do not read the nonexclusive language of that

provision to set a ceiling that tacitly precludes the use of

domestic law to enforce arbitration agreements. Thus,

nothing in the text of the Convention “conflict[s] with” the

application of domestic equitable estoppel doctrines permit-

ted under Chapter 1 of the FAA. 9 U. S. C. §208.

B

“Because a treaty ratified by the United States is ‘an

8 GE ENERGY POWER CONVERSION FRANCE SAS

v. OUTOKUMPU STAINLESS USA, LLC

Opinion of the Court

agreement among sovereign powers,’ we have also consid-

ered as ‘aids to its interpretation’ the negotiation and draft-

ing history of the treaty as well as ‘the postratification un-

derstanding’ of signatory nations.” Medellín, 552 U. S., at

507 (quoting Zicherman v. Korean Air Lines Co., 516 U. S.

217, 226 (1996)). These aids confirm our interpretation of

the Convention’s text.

1

Our precedents have looked to the “negotiating and draft-

ing history” of a treaty as an aid in determining the shared

understanding of the treaty. Id., at 226. Invoking this in-

terpretive aid, Outokumpu argues that the Convention’s

drafting history establishes a “rule of consent” that “dis-

place[s] varying local laws.” Brief for Respondents 27. We

are unpersuaded. For one, nothing in the text of the Con-

vention imposes a “rule of consent” that displaces domestic

law—let alone a rule that allows some domestic-law doc-

trines and not others, as Outokumpu proposes. The only

time the Convention uses the word “consent” is in Article

X(3), which addresses ratification and accession proce-

dures. Moreover, the statements relied on by Outokumpu

do not address the specific question whether the Conven-

tion prohibits the application of domestic law that would

allow nonsignatories to compel arbitration. Cherry-picked

“generalization[s]” from the negotiating and drafting his-

tory cannot be used to create a rule that finds no support in

the treaty’s text. Zicherman, 516 U. S., at 227.

To the extent the drafting history sheds any light on the

meaning of the Convention, it shows only that the drafters

sought to impose baseline requirements on contracting

states. As this Court has recognized, “[i]n their discussion

of [Article II], the delegates to the Convention voiced fre-

quent concern that courts of signatory countries . . . should

not be permitted to decline enforcement of such agreements

on the basis of parochial views of their desirability or in a

Cite as: 590 U. S. ____ (2020) 9

Opinion of the Court

manner that would diminish the mutually binding nature

of the agreements.” Scherk, 417 U. S., at 520, n. 15 (citing

G. Haight, Convention on the Recognition and Enforcement

of Foreign Arbitral Awards: Summary Analysis of Record of

United Nations Conference, May/June 1958, pp. 24–28

(1958)). Nothing in the drafting history suggests that the

Convention sought to prevent contracting states from ap-

plying domestic law that permits nonsignatories to enforce

arbitration agreements in additional circumstances.

2

“[T]he postratification understanding” of other contract-

ing states may also serve as an aid to our interpretation of

a treaty’s meaning. Medellín, 552 U. S., at 507 (internal

quotation marks omitted). To discern this understanding,

we have looked to the “[d]ecisions of the courts of other Con-

vention signatories,” El Al Israel Airlines, Ltd. v. Tsui Yuan

Tseng, 525 U. S. 155, 175 (1999), as well as the “postratifi-

cation conduct” of the governments of contracting states, Zi-

cherman, 516 U. S., at 227.

Here, the weight of authority from contracting states in-

dicates that the New York Convention does not prohibit the

application of domestic law addressing the enforcement of

arbitration agreements. The courts of numerous contract-

ing states permit enforcement of arbitration agreements by

entities who did not sign an agreement. See 1 G. Born, In-

ternational Commercial Arbitration §10.02, pp. 1418–1484

(2d ed. 2014) (compiling cases). The United States identi-

fies at least one contracting state with domestic legislation

illustrating a similar understanding. See Brief for United

States as Amicus Curiae 28 (discussing Peru’s national leg-

islation). And GE Energy points to a recommendation is-

sued by the United Nations Commission on International

Trade Law that, although not directly addressing Article

II(3), adopts a nonexclusive interpretation of Article II(1)

10 GE ENERGY POWER CONVERSION FRANCE SAS

v. OUTOKUMPU STAINLESS USA, LLC

Opinion of the Court

and (2). Report of the United Nations Commission on In-

ternational Trade Law on the Work of Its Thirty-Ninth Ses-

sion, Recommendation Regarding the Interpretation of Ar-

ticle II, Paragraph 2, and Article VII, Paragraph 1, of the

Convention on the Recognition and Enforcement of Foreign

Arbitral Awards ¶¶1, 2, U. N. Doc. A/61/17, annex II (July

7, 2006) (UN recommendation).

These sources, while generally pointing in one direction,

are not without their faults. The court decisions, domestic

legislation, and UN recommendation relied on by the par-

ties occurred decades after the finalization of the New York

Convention’s text in 1958. This diminishes the value of

these sources as evidence of the original shared under-

standing of the treaty’s meaning. Moreover, unlike the ac-

tions and decisions of signatory nations, we have not previ-

ously relied on UN recommendations to discern the

meaning of treaties. See also Yang v. Majestic Blue Fisher-

ies, LLC, 876 F. 3d 996, 1000–1001 (CA9 2017) (declining to

give weight to the 2006 UN recommendation). But to the

extent this evidence is given any weight, it confirms our in-

terpretation of the Convention’s text.

3

Finally, the parties dispute whether the Executive’s in-

terpretation of the New York Convention should affect our

analysis. The United States claims that we should apply a

“ ‘canon of deference’ ” and give “ ‘ “great weight” ’ ” to an in-

terpretation set forth by the Executive in an amicus brief

submitted to the D. C. Circuit in 2014. Brief for United

States as Amicus Curiae 30 (quoting Abbott v. Abbott, 560

U. S. 1, 15 (2010)); see also Brief for United States as Ami-

cus Curiae in No. 13–7004 (CADC), pp. 7, 9. GE Energy

echoes this request. Outokumpu, on the other hand, argues

that the Executive’s noncontemporaneous interpretation

sheds no light on the meaning of the treaty, asserting that

the Executive expressed the “opposite . . . view at the time

Cite as: 590 U. S. ____ (2020) 11

Opinion of the Court

of the Convention’s adoption.” Brief for Respondents 33.

Outokumpu asserts that this Court has repeatedly rejected

executive interpretations that contradict the treaty’s text or

the political branches’ previous understanding of a treaty.

Id., at 34–35 (citing, e.g., Chan v. Korean Air Lines, Ltd.,

490 U. S. 122, 136 (1989) (Brennan, J., concurring in judg-

ment); Perkins v. Elg, 307 U. S. 325, 328, 337–349 (1939)).

We have never provided a full explanation of the basis for

our practice of giving weight to the Executive’s interpreta-

tion of a treaty. Nor have we delineated the limitations of

this practice, if any. But we need not resolve these issues

today. Our textual analysis aligns with the Executive’s in-

terpretation so there is no need to determine whether the

Executive’s understanding is entitled to “weight” or “defer-

ence.” Cf. Edelman v. Lynchburg College, 535 U. S. 106,

114–115, n. 8 (2002) (“[T]here is no need to resolve defer-

ence issues when there is no need for deference”).

IV

The Court of Appeals did not analyze whether Article

II(3) of the New York Convention conflicts with equitable

estoppel. Instead, the court held that Article II(1) and (2)

include a “requirement that the parties actually sign an

agreement to arbitrate their disputes in order to compel ar-

bitration.” 902 F. 3d, at 1326. But those provisions address

the recognition of arbitration agreements, not who is bound

by a recognized agreement. Article II(1) simply requires

contracting states to “recognize an agreement in writing,”

and Article II(2) defines the term “agreement in writing.”

Here, the three agreements at issue were both written and

signed.3 Only Article II(3) speaks to who may request re-

ferral under those agreements, and it does not prohibit the

application of domestic law. See supra, at 6–7.

——————

3 We do not address whether Article II(2) requires a signed agreement.

12 GE ENERGY POWER CONVERSION FRANCE SAS

v. OUTOKUMPU STAINLESS USA, LLC

Opinion of the Court

Because the Court of Appeals concluded that the Conven-

tion prohibits enforcement by nonsignatories, the court did

not determine whether GE Energy could enforce the arbi-

tration clauses under principles of equitable estoppel or

which body of law governs that determination. Those ques-

tions can be addressed on remand. We hold only that the

New York Convention does not conflict with the enforce-

ment of arbitration agreements by nonsignatories under do-

mestic-law equitable estoppel doctrines.

* * *

For the foregoing reasons, we reverse the judgment of the

Court of Appeals and remand the case for further proceed-

ings consistent with this opinion.

It is so ordered.

Cite as: 590 U. S. ____ (2020) 1

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–1048

_________________

GE ENERGY POWER CONVERSION FRANCE SAS,

CORP., FKA CONVERTEAM SAS, PETITIONER v.

OUTOKUMPU STAINLESS USA, LLC, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 1, 2020]

JUSTICE SOTOMAYOR, concurring.

I agree with the Court that the Convention on the Recog-

nition and Enforcement of Foreign Arbitral Awards, June

10, 1958, 21 U. S. T. 2517, T. I. A. S. No. 6997 (New York

Convention), does not categorically prohibit the application

of domestic doctrines, such as equitable estoppel, that may

permit nonsignatories to enforce arbitration agreements. I

note, however, that the application of such domestic doc-

trines is subject to an important limitation: Any applicable

domestic doctrines must be rooted in the principle of con-

sent to arbitrate.

This limitation is part and parcel of the Federal Arbitra-

tion Act (FAA) itself. It is a “basic precept,” Stolt-Nielsen

S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662, 681 (2010),

that “[a]rbitration under the [FAA] is a matter of consent,

not coercion,” Volt Information Sciences, Inc. v. Board of

Trustees of Leland Stanford Junior Univ., 489 U. S. 468,

479 (1989); see also, e.g., Lamps Plus, Inc. v. Varela, 587

U. S. ___, ___ (2019) (slip op., at 7) (“Consent is essential

under the FAA”); Granite Rock Co. v. Teamsters, 561 U. S.

287, 299 (2010) (“[T]he first principle that underscores all

of our arbitration decisions” is that “[a]rbitration is strictly

‘a matter of consent’ ”). “We have emphasized th[is] ‘foun-

dational FAA principle’ many times,” Lamps Plus, 587

2 GE ENERGY POWER CONVERSION FRANCE SAS

v. OUTOKUMPU STAINLESS USA, LLC

SOTOMAYOR, J., concurring

U. S., at ___ (slip op., at 7) (quoting Stolt-Nielsen, 559 U. S.,

at 684) (citing cases), and even the parties find common

ground on the point, see Tr. of Oral Arg. 7, 49; Brief for Re-

spondents 2.

Because this consent principle governs the FAA on the

whole, it constrains any domestic doctrines under Chapter

1 of the FAA that might “appl[y]” to Convention proceedings

(to the extent they do not “conflict with” the Convention). 9

U. S. C. §208; cf. ante, at 5–6. Parties seeking to enforce

arbitration agreements under Article II of the Convention

thus may not rely on domestic nonsignatory doctrines that

fail to reflect consent to arbitrate.

While the FAA’s consent principle itself is crystalline, it

is admittedly difficult to articulate a bright-line test for de-

termining whether a particular domestic nonsignatory doc-

trine reflects consent to arbitrate. That is in no small part

because some domestic nonsignatory doctrines vary from

jurisdiction to jurisdiction. With equitable estoppel, for in-

stance, one formulation of the doctrine may account for a

party’s consent to arbitrate while another does not. Cf.

Brief for Respondents 45 (maintaining that courts have

applied at least “three different versions” of GE Energy’s

equitable-estoppel theory, including one that allegedly “al-

lows a non-party to force arbitration even of claims wholly

unconnected to the agreement”). Lower courts must there-

fore determine, on a case-by-case basis, whether applying a

domestic nonsignatory doctrine would violate the FAA’s in-

herent consent restriction.*

——————

* In this case, however, I am skeptical that any domestic nonsignatory

doctrines need come into play at all, because Outokumpu appears to have

expressly agreed to arbitrate disputes under the relevant contract with

subcontractors like GE Energy. The contract provided that disputes aris-

ing between the buyer and seller in connection with the contract were

subject to arbitration. App. 171. It also specified that the seller in the

contract “shall be understood” to include “[s]ub-contractors.” Id., at 88–

89. And it appended a list of potential subcontractors, one of which was

Cite as: 590 U. S. ____ (2020) 3

SOTOMAYOR, J., concurring

Article II of the Convention leaves much to the contract-

ing states to resolve on their own, and the FAA imposes few

restrictions. Nevertheless, courts applying domestic non-

signatory doctrines to enforce arbitration agreements un-

der the Convention must strictly adhere to “the founda-

tional FAA principle that arbitration is a matter of

consent.” Stolt-Nielsen, 559 U. S., at 684. Because the

Court’s opinion is consistent with this limitation, I join it in

full.

——————

GE Energy’s predecessor, Converteam. Id., at 184–185.