Amicus Curiae Brief — GE Energy Power Conversion France SAS, Corp., fka Converteam SAS, Petitioner v. Outokumpu Stainless USA, LLC, et al.

Supreme Court briefSep 24, 2019

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No. 18-1048

IN THE

Supreme Court of the United States

————

GE ENERGY POWER CONVERSION FRANCE SAS, CORP.,

A FOREIGN CORPORATION FORMERLY KNOWN AS

CONVERTEAM SAS,

Petitioner,

OUTOKUMPU STAINLESS USA, LLC, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

————

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

————

STEVEN P. LEHOTSKY

JONATHAN URICK

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, D.C. 20062

(202) 463-5337

PETER B. RUTLEDGE

Counsel of Record

215 Morton Avenue

Athens, GA 30605

(706) 542-7140

borutledge70@gmail.com

Counsel for Amicus Curiae

September 24, 2019

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

INTEREST OF AMICUS CURIAE .....................

INTRODUCTION ................................................

ARGUMENT ........................................................

I. Chapter 1 of the Federal Arbitration Act

permits a non-signatory to enforce an

arbitration

agreement

against

signatory if the applicable law so allows .

II. Nothing in the New York Convention or

its implementing legislation conflicts

with application of the Carlisle doctrine .

A. The Carlisle doctrine is not “in

conflict” with the New York

Convention ...........................................

1. The text of Article II does not preclude the application of the Carlisle

doctrine ...........................................

2. The drafting history demonstrates

that the Convention was not

meant to limit international arbitrations to the parties that have

formally signed the contract containing the arbitration clause ........

3. The New York Convention’s commercially flexible purpose does

not support the lower court’s rigid

rule ..................................................

(i)

TABLE OF CONTENTS—Continued

Page

4. The lower court’s rule is inconsistent with the post-ratification

understanding of other signatory

states...............................................

a. Statutory Practice .....................

b. Judicial Decisions .....................

B. The Carlisle doctrine is not “in

conflict” with Chapter 2 of the Federal

Arbitration Act .....................................

C. The Case Should Be Remanded for

Further Proceedings .............................

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Abbott v. Abbott,

560 U.S. 1 (2010) ....................................... 21, 25

Allied-Bruce Terminix Cos.,

Inc. v. Dobson,

513 U.S. 265 (1995) ...................................

Application of Reconstruction

Fin. Corp.,

106 F.Supp. 358 (S.D.N.Y. 1952)..............

Arthur Andersen LLP v. Carlisle,

556 U.S. 624 (2009) ..................................passim

Burgess v. United States,

553 U.S. 124 (2008) ................................... 14-15

Chisom v. Roemer,

501 U.S. 380 (1991) ...................................

Choctaw Nation v. United States,

318 U.S. 423 (1943) ...................................

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ................................... 14-15

Citizens Bank v. Alafabco, Inc.,

539 U.S. 52 (2003) (per curiam) ...............

Cortez Byrd Chips, Inc. v.

Bill Harbert Const. Co.,

529 U.S. 193 (2000) .............................. 11-12, 16

Eastern Airlines, Inc. v. Floyd,

499 U.S. 530 (1991) ...................................

El Al Israel Airlines, Ltd. v. Tseng,

525 U.S. 155, (1999) ..................................

TABLE OF AUTHORITIES—Continued

Page(s)

Epic Systems Corp. v. Lewis,

138 S. Ct. 1612 (2018) ...............................

Fisser v. International Bank,

282 F.2d 231 (2d Cir. 1960) ...................... 10-11

Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20 (1991) .....................................

Groman v. Comm’r of Internal Revenue,

302 U.S. 82 (1937) ..................................... 14-15

Judgment of 16 October 2003,

22 ASA Bull. 364 (2004) ...........................

Karaha Bodas Co. v. Perusahaan

Pertambangan Minyak

Dan Gas Bumi Negara,

364 F.3d 274 (5th Cir. 2004) .....................

Lamps Plus, Inc. v. Varela,

139 S. Ct. 1407 (2019) ...............................

Marx v. Gen. Revenue Corp.,

568 U.S. 371 (2013) ...................................

Medellin v. Texas,

552 U.S. 491 (2008) ............................. 14, 16, 25

Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc.,

473 U.S. 614 (1985) .............................. 12, 21-22

Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp.,

460 U.S. 1 (1983) .......................................

TABLE OF AUTHORITIES—Continued

Page(s)

National Iranian Oil Co. v.

Ashland Oil, Inc.,

817 F.2d 326 (5th Cir. 1987) ..................... 11, 31

New Jersey v. New York,

523 U.S. 767 (1998) ................................... 13-14

O’Melveny & Myers v. FDIC,

512 U.S. 79 (1994) .....................................

Perry v. Thomas,

482 U.S. 483 (1987) ...................................

Sanluis Devs., L.L.C. v.

CCP Sanluis, L.L.C.,

556 F. Supp. 2d 329 (S.D.N.Y. 2008)........

Scherk v. Alberto-Culver Co.,

417 U.S. 506 (1974) ................................... 12, 21

United States v. Stuart,

489 U.S. 353 (1989) ...................................

Volkswagenwerk Aktiengesellschaft v.

Schlunk,

486 U.S. 694 (1988) ...................................

Volt Info. Scis., Inc. v. Board of Trust. of

Leland Stanford Junior Univ.,

489 U.S. 468 (1989) ...................................

Zicherman v. Korean Airlines Co.,

516 U.S. 217 (1996) ................................... 16, 25

TABLE OF AUTHORITIES—Continued

STATUTES

Page(s)

9 U.S.C. § 1 ...................................................

9 U.S.C. § 2 ...................................................

9 U.S.C. § 3 ...................................................

9 U.S.C. § 4 ...................................................

9 U.S.C. § 9 ...................................................

9 U.S.C. § 201 ...............................................

9 U.S.C. § 202 ...............................................

9 U.S.C. § 203 ...............................................

9 U.S.C. § 205 ...............................................

9 U.S.C. § 206 ...............................................

9 U.S.C. § 207 ...............................................

9 U.S.C. § 208 ...............................................

9 U.S.C. § 301 ...............................................

TREATIES

Convention on the Execution of Foreign

Arbitral Awards, Sept. 26, 1927, 92

L.N.T.S. 301 (1929) ...................................

5-6

Convention on the Settlement of Investment Disputes Between States and

Nationals of Other States 575 U.N.T.S.

159 (1965) ..................................................

Protocol on Arbitration Clauses in Commercial Matters, Sept. 24, 1923, 27

L.N.T.S. 158 (1924) ...................................

4-5

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Treaty of Friendship, Commerce and

Navigation Between the United States

of America and Ireland, 1 U.S.T. 1785

(1950) .........................................................

United Nations Convention on the Recognition and Enforcement of Foreign Arbitral

Awards, June 10, 1958, 21 U.S.T. 2517,

330 U.N.T.S. 38 ........................................passim

OTHER AUTHORITIES

G. Born, International Commercial

Arbitration (2d ed. 2014) .........................passim

21 R. Lord, Williston on Contracts (4th ed.

2001) ..........................................................

116 Cong. Rec 22,732-33 (1970) ................... 32-33

A. van den Berg, The New York Arbitration

Convention of 1958: Towards a Uniform

Judicial Interpretation (1981) .................. 15, 24

G. Born & P. Rutledge, International Civil

Litigation in United States Courts (6th

ed. 2018) ................................................ 2, 12, 22

R. Force & A. J. Mavronicolas, Two Models

of Maritime Dispute Resolution: Litigation and Arbitration, 65 Tul. L. Rev. 1461

(1991) .........................................................

H.R. Rep. No. 91-1181 (1970) .......................

G.W. Haight, Convention on the Recognition

and Enforcement of Foreign Arbitral

Awards: Summary Analysis of Record of

United Nations Conference (May/June

1958) (1958) ..............................................passim

viii

TABLE OF AUTHORITIES—Continued

Page(s)

J. Hinchey & T. Harris, International Construction Arbitration Handbook (2019) ....

Interpretive Instrument on the New York

Convention in A Guide to the 2006

Amendments to the UNCITRAL Model

Law on International Commercial Arbitration (Howard Holtzmann, et al.,

2015) .......................................................... 26-27

P. Leboulanger, Multi-Contract Arbitration,

13 Journal Int’l Arb. 47 (1996) .................

L. Quigley, Accession by the United States

to the United Nations Convention on the

Recognition and Enforcement of Foreign

Arbitral Awards, 70 Yale L.J. 1049

(1961) ........................................................passim

Report of the Committee on the Enforcement of International Arbitral Awards

on its Nineteenth Session, item 14,

ECOSOC, U.N. Doc. E/AC.41/4/Rev.1

(Mar. 28, 1955) ..........................................

Restatement of U.S. Law of Int’l Comm.

and Investor-State Arb. (2019) ................. 10, 34

S. Exec. Rep. No. 90-10 (1968) ..................... 32-33

S. Rep. No. 91-702 (1970) ............................. 32-33

P. Sanders, A Twenty Years’ Review of the

Convention on the Recognition and

Enforcement of Foreign Arbitral Awards,

13 Int’l Lawyer 269 (1979)........................

TABLE OF AUTHORITIES—Continued

Page(s)

A. Scalia & B. A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ..

J.J. Sentner, Who is Bound by Arbitration

Agreements? Enforcement by and Against

Non-signatories, 6 Bus. L. Int’l 55 (2005)

A. M. Steingruber, Consent in International

Arbitration (2012) .....................................

U.N. Conference on Int’l Commercial

Arbitration, Consideration of the Draft

Convention on the Recognition and Enf’t

of Foreign Arbitral Awards: Sweden

Amendment to the Draft Convention,

U.N. Doc. E/Conf.26/L.8 (May 22, 1958) ..

U.N. Conference on Int’l Commercial

Arbitration, Consideration of the Draft

Convention on the Recognition and

Enf’t of Foreign Arbitral Awards: Text of

Additional Protocol on the Validity of

Arbitration Agreements Submitted by

Working Party No. 2, Doc. E/Conf.26/L.52

(June 5, 1958) ............................................

U.N. Conference on Int’l Commercial

Arbitration, Summary Record of the

Ninth Meeting, U.N. Doc. E/Conf.26/SR.9

(Sept. 12, 1958) ......................................... 18-20

U.N. Conference on Int’l Commercial Arbitration, Summary Record of the Seventh

Meeting, U.N. Doc. E/Conf.26/SR.7 (Sept.

12, 1958) .................................................... 18-19

TABLE OF AUTHORITIES—Continued

Page(s)

U.N. Conference on Int’l Commercial

Arbitration, Text of Convention on the

Recognition and Enf’t of Foreign Arbitral

Awards as Provisionally Approved by the

Drafting Committee on 6 June 1958, U.N.

Doc. E/Conf.26/L.61 ..................................

UNCITRAL, Overview of the Status of

UNCITRAL Conventions and Model

Laws (Sept. 5, 2019) available at https://

uncitral.un.org/sites/uncitral.un.org/files

/media-documents/uncitral/en/overviewstatus-table_2.pdf .....................................

UNCITRAL Model Law, G.A. Res. 40/72, 40

U.N. G.A.O.R. Supp. (No. 17), U.N. Doc.

A/40/17 (June 21, 1985), revised in 2006,

G.A. Res. 61/33, U.N. Doc. A/61/33 ..........

UNCITRAL Secretariat, Guide on the

Convention on the Recognition and

Enforcement of Foreign Arbitral Awards,

(Emmanuel Gaillard & George Bermann

eds., 2017) .................................................

R. Wolff, The UN Convention on the Use of

Electronic Communications in International Contracts: An Overlooked Remedy

for Outdated Form Provisions under the

New York Convention?, in 60 Years of the

New York Convention: Key Issues and

Future Challenges (K. Gomez & A.

Rodriguez eds. 2019) .................................

IN THE

Supreme Court of the United States

————

No. 18-1048

————

GE ENERGY POWER CONVERSION FRANCE SAS, CORP.,

A FOREIGN CORPORATION FORMERLY KNOWN AS

CONVERTEAM SAS,

Petitioner,

OUTOKUMPU STAINLESS USA, LLC, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

————

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

————

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest federation

of businesses and associations. The Chamber repre1

No counsel for a party authored this brief in whole or in part.

No person other than amicus curiae, its members or its counsel

made a monetary contribution intended to fund the preparation

or submission of this brief. All parties have consented to the filing

of this brief.

sents approximately 300,000 direct members and

indirectly represents an underlying membership of

more than 3 million U.S. businesses and professional

organizations of every size and in every economic sector

and geographic region of the country. An important

function of the Chamber is to represent the interests

of its members before the courts, Congress and the

Executive Branch.

To that end, the Chamber regularly files amicus

briefs in cases that raise issues of concern to the Nation’s

business community, including cases involving the

enforceability of arbitration agreements. See, e.g.,

Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019); Epic

Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

International arbitration is especially important to

the Chamber’s members. As global trade has expanded,

American companies increasingly rely on international

arbitration to resolve complex commercial disputes.

The sophisticated legal framework governing the

enforcement of international arbitration agreements

and arbitral awards provides essential assurance that

those companies’ commercial interests will be safeguarded. The 1958 United Nations Convention on the

Recognition and Enforcement of Foreign Arbitral Awards

(“New York Convention”) represents an essential

keystone in this legal framework. Whereas the United

States is not a party to any bilateral or multilateral

treaty governing the enforcement of foreign judgments, 160 countries, including the United States and

virtually all of the world’s major trading nations, have

acceded to the New York Convention. See G. Born &

P. Rutledge, International Civil Litigation in United

States Courts 1070, 1153 (6th ed. 2018); 1 G. Born,

International Commercial Arbitration § 1.04[a][1][b]

at 104 (2d ed. 2014).

The Chamber thus has a strong interest in the law

governing arbitration, including the proper construction of the New York Convention and the Federal

Arbitration Act (“FAA”).

INTRODUCTION

This case concerns the identity of parties that

can enforce international arbitration agreements.

Historically, such agreements, whether foreign or

domestic, were unenforceable in the United States

because they attempted to oust courts of jurisdiction

and, consequently, were contrary to public policy.

See 1 Born, International Commercial Arbitration,

§ 1.01[B][5] at 46-50. Similar sentiments prevailed in

England and some civil-law systems like France. See

id. § 1.01[B][3]-[5] at 35-46.

Over the course of the twentieth century, as international and interstate commerce expanded, nations

including the United States adapted their legal rules

governing arbitration. In the United States, the FAA’s

enactment in 1925 represented an important milestone.

See 9 U.S.C. §§ 1-16. See generally 1 Born, International Commercial Arbitration § 1.04[B][1] at 128-34.

A key purpose of the FAA “was to reverse the longstanding judicial hostility to arbitration agreements

that had existed at English common law and had been

adopted by American courts.” Gilmer v. Interstate/

Johnson Lane Corp., 500 U.S. 20, 24 (1991).

Countries also entered into bilateral treaties to

facilitate commerce. Such treaties, sometimes referred

to as Friendship Commerce and Navigation (“FCN”)

treaties, often required signatory countries to recognize arbitration clauses contained in contracts between

companies from their respective states. See L. Quigley,

Accession by the United States to the United Nations

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards, 70 Yale L.J. 1049, 1051-54

(1961). For example, the FCN treaty between the

United States and the Republic of Ireland provided

that “[c]ontracts entered into between nationals and

companies of either Party and nationals and companies of the other Party, that provide for the settlement

by arbitration of controversies, shall not be deemed

unenforceable within the territories of such other

Party merely on the grounds that the place designated

for the arbitration proceedings is outside such territories or that the nationality of one or more of the

arbitrators is not that of such other Party.” Treaty of

Friendship, Commerce and Navigation Between the

United States of America and Ireland, 1 U.S.T. 785,

art. X (1950).

Beyond these national reforms and bilateral undertakings, many of the world’s major trading nations

also developed a multilateral treaty framework. That

framework governed the enforceability of both international commercial arbitration agreements and awards.

Its foundations included the 1923 Geneva Protocol on

Arbitration Clauses and the 1927 Geneva Convention

on the Execution of Foreign Arbitral Awards. Though

no longer effective today, these two treaties supply

the essential backdrop against which the New York

Convention, central to this case, was developed.

The Geneva Protocol governed the enforcement of

international commercial arbitration agreements. It

obligated signatory states to “recognise[] the validity”

of arbitration agreements relating to commercial matters between parties of different contracting states

irrespective of arbitral forum. Protocol on Arbitration

Clauses in Commercial Matters art. 1, Sept. 24, 1923,

27 L.N.T.S. 158 (1923) (“Geneva Protocol”). It also

required the courts of those states “seized of a dispute”

regarding a contract containing a “valid” arbitration

agreement to “refer” the parties to arbitration unless

it found that the arbitration “cannot proceed” or that

the agreement had “become[] inoperative.” Id. art. 4.

The Geneva Convention governed the enforcement

of international commercial arbitral awards. The

Convention generally obligated signatory states to

“recognise[] as binding” and to “enforce” foreign awards

rendered by a tribunal sitting in another state that

was party to the convention. Convention on the

Execution of Foreign Arbitral Awards art. 1, Sept. 26,

1927, 92 L.N.T.S. 301 (1929) (“Geneva Convention”).

It also contained various defenses to enforcement,

including where the arbitration agreement was not

“valid under the law applicable thereto.” Id. art. 1(a).

Although both the Geneva Protocol and the Geneva

Convention signified milestones in the development of

a multilateral legal framework governing arbitration,

they did not produce “the widespread international

enforcement of arbitration agreements and awards

which was expected of them.” Quigley, 70 Yale L.J. at

1055. The United States did not ratify either treaty.

1 Born, International Commercial Arbitration § 1.01[C][1]

at 65. Moreover, both treaties contained several structural shortcomings. For example, while the Geneva

Protocol generally obligated signatory states to enforce

international commercial arbitration agreements, it

provided no guidance regarding subjects such as when

an agreement was “valid” or “inoperative,” effectively

leaving the matter to national courts. Geneva Protocol

art. 1. Similarly, although the Geneva Convention

generally obligated signatory states to enforce international commercial arbitral awards, it first required the

prevailing party to obtain judicial confirmation of the

award in the state where the arbitration took place

before it could seek enforcement elsewhere, again tying

enforceability questions to national law. See Geneva

Convention art. I(d). Bifurcation of the issues governing a single arbitration—with one treaty principally

governing arbitration agreements and another treaty

principally governing arbitral awards—presented additional challenges.

Completed in 1958, the New York Convention represented the culmination of a multi-year, multilateral

effort to overcome some of these shortcomings. Evidencing the close connection between these treaties,

the New York Convention explicitly provides that

the two Geneva treaties “shall cease to have effect

between Contracting States on their becoming bound,

and to the extent they become bound, by this Convention.” New York Convention art. VII (2).

Much of the New York Convention addresses the

enforceability of international commercial arbitral

awards, the subject previously regulated by the 1927

Geneva Convention. This is unsurprising for, as

explained below (infra at 17), the provisions regulating

arbitration agreements only were added very late in

the drafting process.

Article II of the New York Convention supplies the

primary provision governing the enforcement of international commercial arbitration agreements, the subject

previously regulated by the 1923 Geneva Protocol.

That article contains three sections. Section 1, much

like Article I of the Geneva Protocol, imposes an

affirmative obligation on Contracting States to recognize arbitration agreements:

Each Contracting State shall recognize an

agreement in writing under which the parties

undertake to submit to arbitration all or any

differences which have arisen or which may

arise between them in respect of a defined legal

relationship, whether contractual or not, concerning a subject matter capable of settlement by

arbitration.

Section 2 defines the term “agreement in writing,”

used in Section 1:

The term “agreement in writing” shall include an

arbitral clause in a contract or an arbitration

agreement, signed by the parties or contained in

an exchange of letters or telegrams.

Section 3, much like Article IV of the Geneva Protocol,

imposes an affirmative obligation on courts to refer

actions to arbitration:

The 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.

The court below read these provisions, in particular

Article II (2), strictly to limit the identity of the parties

that may request a court to refer a dispute to

arbitration in a case arising under the New York

Convention. In the lower court’s view, the New York

Convention only allows a court to refer a dispute to

arbitration when the contract containing the arbitration clause is “signed by the parties before the Court

or their privities.” Pet. App. 16a (footnote omitted).

ARGUMENT

Amicus agrees with Petitioner that the lower court’s

decision should be reversed. Amicus writes separately

to explain why, with special reference to its historical

backdrop and the post-ratification understanding of

other signatory states, the New York Convention does

not displace doctrines permitting parties, other than

those that have formally signed the contract containing the arbitration clause, from enforcing the clause

where the applicable law so allows.

I. Chapter 1 of the Federal Arbitration Act

permits a non-signatory to enforce an

arbitration agreement against a signatory

if the applicable law so allows.

Title 9 of the United States Code contains three

chapters. Chapter 1 supplies general provisions governing domestic arbitrations and, under certain circumstances, international arbitrations. See 9 U.S.C.

§§ 1-16. Chapter 2 contains the implementing legislation for the New York Convention. See 9 U.S.C.

§§ 201-08. Chapter 3 contains the implementing

legislation for the Inter-American Convention on International Commercial Arbitration (“Panama Convention”). See 9 U.S.C. §§ 301-07.

Two key provisions of Chapter 1 help to overcome

the above-described historical opposition to the

enforcement of arbitration agreements. Section 2

requires courts to enforce those agreements “save

upon such grounds as exist at law or in equity for the

revocation of any contract.” 9 U.S.C. § 2. Section 3

entitles litigants to a stay in federal court of an action

that is subject to an arbitration agreement falling

under Section 2. Id. § 3.

Collectively, these sections place arbitration agreements on the “same footing as other contracts.” Arthur

Andersen LLP v. Carlisle, 556 U.S. 624, 630 (2009);

Volt Info. Scis., Inc. v. Board of Trust. of Leland

Stanford Junior Univ., 489 U.S. 468, 478 (1989). This

equal-footing principle requires courts to apply doctrines governing the enforcement of certain thirdparty contractual rights. Carlisle, 556 U.S. at 630-31.

These doctrines include “assumption, piercing the

corporate veil, alter ego, incorporation by reference,

third-party beneficiary theories, waiver and estoppel.”

Id. at 631 (quoting 21 R. Lord, Williston on Contracts

§ 57:19 at 183 (4th ed. 2001)) (emphasis added).

In Carlisle, a set of defendants (who were not

signatories to contracts containing arbitration clauses)

invoked one such doctrine—estoppel—to argue that

plaintiffs (who had signed the contracts) were required

to resolve their claims in arbitration. This Court

agreed with the defendants and held that “a litigant

who was not a party to the relevant arbitration agreement may invoke § 3 if the relevant state contract law

allows him to enforce the agreement.” 556 U.S. at 632.

Under Carlisle, then, the answer to the question

presented in this case is clear under Chapter 1. Here,

just like in Carlisle, a defendant that has not signed

the contract containing the arbitration clause invokes

the estoppel doctrine to enforce that clause against

a plaintiff-signatory. Carlisle makes plain that, in

Chapter 1 cases, the FAA permits a defendant to do so

(and does not categorically limit the enforcement of

the arbitration agreement to its signatories) provided

that the applicable law so allows. The only remaining

question is whether the FAA requires a different rule

when the case has an international dimension.

Until the United States acceded to the New York

Convention, the answer unequivocally was “no.” Before

that time, the United States was not a party to a

multilateral treaty governing the enforcement of international commercial arbitration agreements or arbitral

awards.2 Consequently, between 1925 (the year of

the FAA’s enactment) and 1970 (the year the United

States deposited its notice of ratification), courts

in the United States routinely applied Chapter 1 to

decide whether to enforce international arbitration

agreements, including in cases involving parties

that had not signed the underlying contract containing

the arbitration clause.3 See, e.g., Fisser v. International Bank, 282 F.2d 231 (2d Cir. 1960); Application of Reconstruction Fin. Corp., 106 F. Supp. 358

(S.D.N.Y. 1952). See generally Restatement U.S. Law

of Int’l Comm. and Investor-State Arb. § 2-3 Reporters’

Note a (2019) (“Courts have long held, however, that a

party may be bound even in the absence of formal

assent, whether by signing the arbitration agreement

or otherwise.”).

The Second Circuit’s decision in Fisser illustrates

the point. Fisser involved a charter party between a

In addition to the above-described bilateral Friendship Commerce and Navigation treaties, see supra at 3-4, the United States

had already ratified the 1965 Convention on the Settlement of

Investment Disputes Between States and Nationals of Other

States, 575 U.N.T.S. 159 (1965).

This is unsurprising. Section 2 establishes the validity of

a written provision “in any maritime transaction or a contract

evidencing a transaction involving commerce,” which are broadly

defined to include foreign commercial transactions. See 9 U.S.C.

§ 1. See generally Citizens Bank v. Alafabco, Inc., 539 U.S. 52,

55-58 (2003) (per curiam); Allied-Bruce Terminix Cos., Inc. v.

Dobson, 513 U.S. 265, 273-74 (1995); Perry v. Thomas, 482 U.S.

483, 490 (1987).

German coal importer and a Liberian shipping company. The charter party provided for arbitration in

New York City. A dispute arose over whether a thirdparty bank, allegedly the alter ego of the Liberian

shipper (that had not signed the agreement), could be

compelled to arbitrate its liability arising from the

shipper’s non-performance of its duties under the

charter party. Applying Chapter 1 of the FAA to this

international dispute, the Second Circuit held that the

bank could be required to arbitrate and cited “a long

series of decisions which recognize that the variety

of ways in which a party may become bound by a

written arbitration provision is limited only by

generally operative principles of contract law.” Fisser,

282 F.2d at 233 (footnote omitted) (emphasis added).

Fisser demonstrates that, historically, federal courts

did not apply different principles governing thirdparty enforcement of arbitration agreements merely

because the dispute happened to be an international

one.

Even after the United States ratified the New York

Convention (and the Panama Convention), Chapter 1

still supplies the sole standards governing some international arbitrations. As this Court recognized in

Cortez Byrd Chips, Inc. v. Bill Harbert Const. Co.,

international arbitrations occasionally arise that are

“not covered by either convention.” 529 U.S. 193, 203

(2000). Often, these cases involve arbitrations taking

place in a country that has not signed the New York

Convention or the Panama Convention. In such cases,

the reciprocity reservations deposited by the United

States preclude application of either treaty to enforce

an agreement or an award. See, e.g., New York

Convention art. I(3) (reciprocity reservation); National

Iranian Oil Co. v. Ashland Oil, Inc., 817 F.2d 326 (5th

Cir. 1987). Under these circumstances, Cortez Byrd

Chips made clear, Chapter 1 governs the dispute. 529

U.S. at 197.

The Eleventh Circuit, however, held that the New

York Convention requires a different result in Chapter

2 cases, like this one. It interpreted Article II of

that Convention to displace the Carlisle doctrine and,

instead, to impose an inflexible straitjacket on the

enforceability of such clauses, categorically commanding “that the arbitration agreement be signed by the

parties before the Court or their privities.” Pet. App.

16a (footnote omitted).

This crabbed construction subverts the Convention.

Far from inhibiting international commercial arbitration agreements, a central purpose of the New York

Convention was to enhance their enforceability, as

this Court has repeatedly recognized in a series of

decisions inexplicably ignored by the court below. See

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 639 n.21 (1985); Scherk v. AlbertoCulver Co., 417 U.S. 506, 520 n.15 (1974). See also

Born & Rutledge, International Civil Litigation in

United States Courts at 1159 (“A primary objective of

the New York Convention was to render international

arbitration agreements valid and enforceable.”) (footnote omitted). Ironically, then, the lower court’s rule

renders agreements, falling under a convention specifically designed to enhance their enforceability, less

effective than other agreements falling outside that

treaty’s scope. Faithful application of this Court’s

trusted interpretive tools reveals that nothing in the

New York Convention or its implementing legislation

supports the lower court’s categorical (and erroneous)

conclusion.

II. Nothing in the New York Convention or its

implementing legislation conflicts with

application of the Carlisle doctrine.

Section 208 of the Federal Arbitration Act supplies

the starting point for the analysis: “Chapter 1 applies

to actions and proceedings brought under this chapter

to the extent that chapter is not in conflict with

this chapter or the Convention as ratified by the

United States.” 9 U.S.C. § 208. As the Eleventh

Circuit correctly held, this case is a “proceeding”

brought under Chapter 2. See Pet. App. 8a-13a. Thus,

the Carlisle doctrine, rooted in Chapter 1, applies to

this “proceeding” unless it is “in conflict” with the

Convention or its implementing legislation. It was on

this point of law that the lower court erred. Contrary

to its conclusion, Pet. App. 17a, the Carlisle doctrine

does not conflict with either the treaty or Chapter 2.

A. The Carlisle doctrine is not “in conflict”

with the New York Convention.

1. The text of Article II does not preclude the application of the Carlisle

doctrine.

Nothing in Article II expressly precludes countries

from applying their national doctrines governing

the participation of non-signatories. In light of this

textual silence, amicus agrees with Petitioner (Br.

51-52) that the New York Convention simply does

not displace national rules governing the issue. See

A. Scalia & B. A. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012) (“[A] matter not

covered is to be treated as not covered.”). Elsewhere,

this Court has explained that where a statute or rule

is silent, the background rule or law governs. See

Marx v. Gen. Revenue Corp., 568 U.S. 371, 380 (2013);

New Jersey v. New York, 523 U.S. 767, 783 n.6 (1998);

id. at 813 (Breyer, J., concurring); O’Melveny & Myers

v. FDIC, 512 U.S. 79, 85 (1994). Here, that background rule is the one denominated above (prevailing

for nearly a half century before the New York Convention’s ratification and continuing to govern nonConvention international arbirations governed exclusively by Chapter 1 of the FAA): Doctrines allowing

the participation of non-signatories, including estoppel, are available when the applicable law so allows.

To conclude otherwise, the court below read Article

II (2) to impose an inflexible form requirement on

arbitration agreements falling under the Convention—

insisting that any agreement be “in writing” and

“signed by the parties or their privities.” This rule

effectively precluded any application of the Carlisle

doctrine because the categories of parties envisioned

in Carlisle (and earlier, pre-Convention decisions like

Fisser) necessarily have not “signed” a “written”

agreement. Although the lower court correctly commenced its analysis with the Convention’s text, see

Medellin v. Texas, 552 U.S. 491, 506-07 (2008) (citations omitted), its central error was to construe Article

II (2) to set forth an exhaustive, as opposed to an

exemplary, definition.

As noted in the Introduction, Article II (2) provides

that an agreement in writing “shall include an arbitral

clause in a contract or an arbitration agreement,

signed by the parties or contained in an exchange of

letters or telegrams.” New York Convention art. II (2).

In other contexts, this Court has consistently interpreted the term “include” to be exemplary, not

exhaustive. See Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 146 (2012); Burgess v. United

States, 553 U.S. 124, 131, n.3 (2008); Groman v.

Comm’r of Internal Revenue, 302 U.S. 82, 86 (1937).

Burgess explained that the term “includes” is generally meant to be a term of enlargement, not limitation.

Burgess contrasted the term “includes” with “means,”

explaining that this latter term more often represents

an exhaustive definition. Burgess, 553 U.S. at 131

n.3.; see also Christopher, 567 U.S. at 146.

Whereas Burgess arose in the context of a federal

statute, its construction of the term applies equally in

the context of a treaty. Elsewhere, this Court has

explained that “[o]ther general rules of construction”

may be used to aid in treaty interpretation. Eastern

Airlines, Inc. v. Floyd, 499 U.S. 530, 535 (1991) (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694, 700 (1988)). Thus, the general rule of

construction treating “includes” as a term of enlargement, not limitation, can inform the interpretation of

Article II.

Some commentators have seized upon the phrasing

of Article II (2) in other “equally authentic” languages

to support a more rigid reading. See New York

Convention art. XVI (noting that the treaty is equally

authentic in English, French, Spanish, Chinese and

Russian). Specifically, this argument relies upon the

French version of Article II (2) to indicate that the

relevant term in the provision should be understood

as “means” rather than “includes” and, thus, establishes a minimum form for enforceable agreements.4

See A. van den Berg, The New York Arbitration

Convention of 1958: Towards a Uniform Judicial

Interpretation 178-79 (1981) (“Uniform Interpretation”).

The relevant language in the French version reads “[o]n

entend par convention écrite.”

This view is flawed. For one thing, French courts

do not share it. Instead, as explained below, French

courts have not interpreted Article II so rigidly

but, instead, employ a commercially flexible approach

allowing the participation of non-signatories in an

international commercial arbitration under certain

circumstances. See infra at 27. For another thing,

tensions between two “equally authentic” versions of

the treaty text do not resolve an interpretive question

but demonstrate simply that this may be a case where

“[e]nlightenment will not come merely from parsing

the language.” Cortez Byrd Chips, 529 U.S. at 198.

Instead, it requires resorting to other interpretive

tools on which this Court has relied to construe

treaties. Those interpretive tools all point to a more

flexible, commercially reasonable interpretation of

Article II, consistent with this Court’s customary

interpretation of the term “includes.”

2. The drafting history demonstrates

that the Convention was not meant

to limit international arbitrations to

the parties that have formally signed

the contract containing the arbitration clause.

The travaux preparatoires (i.e., drafting history)

routinely informs this Court’s interpretation of a treaty.

See Medellin, 552 U.S. at 506-07; Zicherman v. Korean

Airlines Co., 516 U.S. 217, 226 (1996); United States v.

Stuart, 489 U.S. 353, 365-66 (1989); Choctaw Nation

v. United States, 318 U.S. 423, 431-32 (1943). In this

case, the New York Convention’s history demonstrates

that its drafters did not intend to displace national

laws governing the identity of the parties that may

enforce an agreement.

Much of the Convention’s drafting history concerns

the provisions governing the enforcement of arbitral

awards, not agreements. In 1954, the United Nations

Economic and Social Council charged an eight-nation

committee (not including the United States) to study a

proposal by the International Chamber of Commerce

for a new international convention specifically governing the enforcement of international arbitral awards.

See Quigley, 70 Yale L.J., at 1059. During the early

stages of the committee’s work, Sweden proposed that

the draft convention also address the enforcement of

arbitration agreements, but the committee declined

to adopt Sweden’s proposal. Rep. of the Comm. on

the Enf’t of Int’l Arbitral Awards on its Nineteenth

Session, item 14, ECOSOC, U.N. Doc. E/AC.41/4/Rev.1,

at 6 (Mar. 28, 1955). Consequently, over the succeeding years, work on the draft convention largely

centered on a framework governing arbitral awards,

not arbitration agreements.

The prospect of regulating arbitration agreements

reemerged during a three-week conference of delegates from forty-five nations (including the United

States) that took place at the United Nations during

May and June of 1958. See G.W. Haight, Convention

on the Recognition and Enforcement of Foreign Arbitral

Awards: Summary Analysis of Record of United Nations

Conference (May/June 1958) 21-23 (1958) (“Summary”).

Near the beginning of that three-week conference,

Sweden, this time joined by Poland, again proposed

consideration of an article requiring signatory states to

recognize arbitration agreements. Id. at 22. Sweden’s

version read simply that every contracting state “shall

recognize as valid any agreement in writing, concerning existing or future disputes, under which the

parties agree to submit to arbitration all or some

disputes as may arise between them on any matter

susceptible of arbitration.” U.N. Conference on Int’l

Commercial Arbitration, Consideration of the Draft

Convention on the Recognition and Enf’t of Foreign

Arbitral Awards: Sweden Amendment to the Draft

Convention, U.N. Doc. E/Conf.26/L.8 (May 22, 1958).

Poland’s proposal was modeled on the Geneva Protocol

of 1923. U.N. Conference on Int’l Commercial Arbitration, Summary Record at the Ninth Meeting, at 2-3,

U.N. Doc. E/Conf.26/SR.9 (Sept. 12, 1958) (“Ninth

Meeting”). This early debate on the Swedish and

Polish proposals centered around questions such as

whether to embed these matters in a separate protocol

and whether it was even appropriate to address

them in a convention principally concerned with the

enforcement of arbitral awards. Haight, Summary,

at 22. Nonetheless, in two respects, the Conference

records help to shed light on the interpretive question

before the Court.

First, some delegates’ comments expressly indicate

that they did not intend to impose rigid requirements

governing arbitration agreements. See UNCITRAL

Secretariat, Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 64

(Emmanuel Gaillard & George Bermann eds., 2017)

(“The drafters of the New York Convention sought

to adopt a flexible ‘in-writing’ requirement in order

to reflect business reality.”) (footnote omitted). For

example, the French delegate, commenting on the

Swedish proposal, doubted whether the treaty needed

to reference that an arbitration agreement could be in

writing and noted that, “[t]he entire question on whether

such agreement had to be executed in writing or could

also be proved by other evidence was one of the

greatest complexity.” U.N. Conference on Int’l Commercial Arbitration, Summary Record of the Seventh

Meeting, at 11, U.N. Doc. E/Conf.26/SR.7 (Sept. 12,

1958) (“Seventh Meeting”); see also id. at 10-11

(comments from El Salvador and Turkey delegations

noting that arbitration agreements were contracts

and, thus, subject to “complex and varied” rules governing their validity and enforceability); Ninth Meeting,

at 4 (noting the Turkey delegate’s criticism of the

Swedish proposal as trying to establish a “uniform

law” and that the text of any amendment would have

to be limited). Similarly, the German delegate, commenting on the Polish proposal, noted that any definition of writing did not mean a “requirement of writing

in the strict sense . . . . [for] [s]uch a requirement would

be at variance with the needs and usages of international trade.” Ninth Meeting, at 3.

Second, other comments suggest that the Convention’s

broader purpose was to overcome some barriers to

international arbitration and to promote that form of

dispute resolution as an essential tool in international

trade and commerce. For example, the Italian delegate observed that the Convention was “designed to

prevent a Contracting State from impeding arbitration.” Seventh Meeting, at 9; see also Ninth Meeting,

at 3 (summarizing comments of German delegate

that Polish and Swedish proposals “had the great

advantage, however, of seeking to preclude recourse

to courts of law”). Similarly, the Polish delegate

observed that its proposal would “make international

transactions more secure” and “prevent commercial

companies from evading arbitrations to which they

had agreed.” Ninth Meeting, at 2-3.

On May 26, following extensive debate on the

Swedish and Polish proposals, the conference delegates reconsidered the view taken in 1955, see

supra, at 17, and concluded that the regulation of

arbitration agreements fell within their mandate. See

Ninth Meeting, at 12; Haight, Summary, at 23. They

declined to regulate the topic directly in the text of the

draft convention at that time but, instead, referred it

to a Working Party to develop a separate protocol. See

Ninth Meeting, at 14; Haight, Summary, at 23-24.

On June 5, the Working Party introduced its report.

Like the Swedish and Polish proposals, the Working

Party report proposed to regulate arbitration agreements. Unlike those proposals, it recommended doing

so in a separate protocol. In response, the delegate

from the Netherlands proposed an amendment to the

Working Party’s draft that, like the original Swedish

proposal, sought to regulate the enforceability of arbitration agreements directly in a single article in

the convention (Article II). Conference delegates

reconsidered the matter and decided, as Sweden,

Poland and the Netherlands had proposed, to regulate

arbitration agreements directly in Article II of the

Convention. See Haight, Summary, at 24.

The final version of Article II reflected an amalgam

of the Working Party’s report and the Netherlands

proposal, both informed by the earlier proposals from

Sweden and Poland. Apart from the general sentiments about not imposing a rigid form and promoting

international arbitration and commerce, these final

drafting moments reveal one other critical feature:

The Working Party report proposed the following

definition of agreement in writing: “shall mean an

arbitration agreement or an arbitral clause in a

contract signed by the parties, or an exchange of

letters or telegrams by those parties.” U.N. Conference

on Int’l Commercial Arbitration, Consideration of the

Draft Convention on the Recognition and Enf’t of

Foreign Arbitral Awards: Text of Additional Protocol

on the Validity of Arbitration Agreements Submitted

by Working Party No. 2, ¶2, U.N. Doc. E/Conf.26/L.52

(June 5, 1958) (emphasis added). The final version

adopted by the delegates, however, utilized the term

“include” from the Dutch proposal and, instead, provided: “The term ‘agreement in writing’ shall include

an arbitral clause in a contract or an arbitration

agreement signed by the parties or contained in an

exchange of letters or telegrams.” U.N. Conference on

Int’l Commercial Arbitration, Text of Convention on

the Recognition and Enf’t of Foreign Arbitral Awards

as Provisionally Approved by the Drafting Committee

on 6 June 1958, at 2, U.N. Doc. E/Conf.26/L.61

(emphasis added). This shift from the more exhaustive

term “shall mean” to the more illustrative term “shall

include” aligns the final wording of the New York

Convention with this Court’s customary jurisprudence

governing the interpretation of like terms in federal

statutes or rules, see supra at 14-15.

Thus, the Convention’s drafting history contains no

indication that the delegates intended to displace

prevailing national doctrines governing the participation of non-signatories. Rather, that history shows

that, to the extent the delegates considered the issue

of arbitration agreements, their primary concerns were

to address shortcomings in the Geneva Protocol, to promote the enforcement of such agreements, and thereby

to facilitate international commercial relationships.

3. The New York Convention’s commercially flexible purpose does not

support the lower court’s rigid rule.

This Court regularly considers a treaty’s underlying

purposes to inform its interpretation. See, e.g., Abbott

v. Abbott, 560 U.S. 1, 20-21 (2010). As this Court has

repeatedly recognized, a key purpose of the New York

Convention was to “promot[e] the process of inter-

national commercial arbitration.” Soler, 473 U.S.

at 639 n.21. See also Scherk, 417 U.S. at 520 n.15.

International arbitration addresses the growing needs

of international commerce and, in contrast to domestic

systems of civil litigation, can be more responsive to

controversies that “have increased in diversity as well

as in complexity.” Soler, 473 U.S. at 638.

Consistent with this Court’s assessment, companies

use a diverse array of complex commercial instruments in their international dealings. For instance, in

the international shipping industry, companies may

use bills of lading that reference an arbitration clause

in a sales contract. See R. Force & A. J. Mavronicolas,

Two Models of Maritime Dispute Resolution: Litigation and Arbitration, 65 Tul. L. Rev. 1461, 1464 (1991).

In complex international construction arrangements,

companies employ a series of contracts governing the

project where different contracts may incorporate

dispute resolution provisions by reference to general

terms and conditions. See generally J. Hinchey &

T. Harris, International Construction Arbitration

Handbook (2019). In certain industries, companies

utilize electronic transmissions to effectuate their

sales. See R. Wolff, The UN Convention on the Use

of Electronic Communications in International Contracts: An Overlooked Remedy for Outdated Form

Provisions under the New York Convention?, in 60

Years of the New York Convention: Key Issues and

Future Challenges (K. Gomez & A. Rodriguez eds.

2019), § 7.04[A] at 118. The enforceability of the

arbitration clauses in such arrangements is especially

important to American businesses because the United

States, unlike much of the rest of the world, has not

ratified a multi-lateral (or bilateral) treaty governing

the recognition and enforcement of foreign judgments.

See Born & Rutledge, International Civil Litigation

in United States Courts, at 1070 (footnote omitted).

Consequently, robust enforcement of international

commercial arbitration clauses governing these

“diverse” and “complex” arrangements is essential to

promote foreign commerce in the United States.

The lower court’s decision jeopardizes these practices and undermines the Convention’s purposes.

None of the dispute resolution provisions in the abovedescribed arrangements clearly survives the lower

court’s test. In many cases, they may not be “in

writing” or “signed by the parties.” Such results

threaten the integrity of their dispute resolution mechanisms and thereby undercut an essential condition of

international commercial exchanges, thwarting the

very purpose of the New York Convention recognized

in Scherk and Mitsubishi.

The lower court briefly appeared to recognize the

ramifications of its decision in a curious footnote. See

Pet. App. 16a n.1. After announcing its rule (requiring

that that the arbitration agreement be “signed by

the parties before the Court or their privities”), it

explained that its decision did not disturb other circuit

jurisprudence holding that the New York Convention

applies to contracts signed by the parties’ privities

or incorporated by reference. Id. But saying does

not make it so. Those contexts, just like the one here,

involve efforts to enforce international arbitration

agreements that have not been “signed by the parties.”

Notwithstanding the lower court’s misgivings, the

commercially disastrous implications of its decision

illustrate the need for a different, more commercially

flexible rule better attuned to the purposes of the

New York Convention recognized in Scherk and

Mitsubishi.

Some commentators have argued that the Convention

was designed to advance an additional purpose—to

supply a uniform substantive law governing international arbitration. See van den Berg, Uniform

Interpretation at 1-2. According to this argument,

Article II should be read to supply a minimum form for

arbitration agreements—in writing and signed by the

parties. It follows, this argument concludes, that the

Convention displaces national law for agreements to

be enforceable under Article II.

This argument is incorrect. Even as it builds upon

the shortcomings of the Geneva treaties, the New York

Convention continues to follow their design by relying

extensively on the national law of signatory states.

For example, the Convention expressly limits its reach

to disputes “capable of settlement by arbitration”

but nowhere identifies what disputes are arbitrable,

effectively leaving that matter to signatory states. See

Quigley, 70 Yale L.J., at 1063-64. Similarly, Article II

(3) requires courts in signatory states to refer a

dispute to arbitration unless the agreement is “null

and void, inoperative or incapable of being performed.”

New York Convention Article II (3). Again, the

Convention does not define those terms, leaving their

interpretation to the courts of signatory states. See

Quigley, 70 Yale L.J., at 1063-64. Several provisions,

like Article V, link the enforceability of an arbitral

award to a particular national law. For example,

Article V (1)(a) ties the award’s enforceability to

the validity of the arbitration agreement and, to

determine validity, requires application of either the

law governing the arbitration agreement or the law of

the arbitral forum. Thus, whatever role the New York

Convention played in harmonizing the law governing

international arbitration, it was not designed to

displace national law governing certain issues, includ-

ing doctrines governing the identity of parties entitled

to participate in an international arbitration.

4. The lower court’s rule is inconsistent with the post-ratification

understanding of other signatory

states.

This Court routinely consults the post-ratification

understanding of other signatory nations to inform its

interpretation of an international treaty. See Abbott,

560 U.S. at 16; Medellin, 552 U.S. at 516; El Al Israel

Airlines, Ltd. v. Tseng, 525 U.S. 155, 175-76 (1999);

Zicherman, 516 U.S. at 226. In this case, the postratification understanding of the Convention establishes that other nations do not construe Article II to

impose the inflexible straitjacket imposed by the court

below. See 1 Born, International Commercial Arbitration § 5.02[A][1][e] at 670 (nothing that “a number of

national courts” have interpreted Article II (2) not to

“impose a minimum form requirement on Contracting

States”). This is evident both from the statutory

practices and judicial decisions of other signatory

nations.

a. Statutory practice.

Many countries that have ratified the New York

Convention also have specific statutes governing

international arbitration. See 1 Born, International

Commercial Arbitration § 1.04[B] at 126-27. Those

international arbitration statutes, designed to comport

with the New York Convention, define international

arbitration agreements less rigidly than the court below.

States adopting the UNCITRAL Model Law on

International Commercial Arbitration (“UNCITRAL

Model Law”) supply an informative example. First

drafted in 1985 and substantially revised in 2006,

the UNCITRAL Model Law offers countries a code

governing international arbitration that is specifically

designed to complement the New York Convention’s

framework. See generally UNCITRAL Model Law,

G.A. Res. 40/72, 40 U.N. G.A.O.R. Supp. (No. 17), U.N.

Doc. A/40/17 (June 21, 1985), revised in 2006, G.A.

Res. 61/33, U.N. Doc. A/61/33. Eighty nations (and

several federated states), including seventy-nine

signatories to the New York Convention, have adopted

some form of the UNCITRAL Model Law. UNCITRAL,

Overview of the Status of UNCITRAL Conventions and

Model Laws (Sept. 5, 2019) available at https://

uncitral.un.org/sites/uncitral.un.org/files/media-docum

ents/uncitral/en/overview-status-table_2.pdf.

Both versions of the UNCITRAL Model Law (like

the FAA) define the term “arbitration agreement,”

and the 2006 version specifically contains options

for capaciously defining arbitration agreement not

limited to written agreements formally signed by the

parties. UNCITRAL Model Law art. 7. The widespread acceptance of the UNCITRAL Model Law

among signatory states to the New York Convention

reflects a widely-held belief, consistent with the abovedescribed drafting history, supra at 18, that the

Convention does not impose a minimum requirement

on the form of arbitration agreements. Instead, it

leaves to the signatory states the authority to adopt

more flexible forms, tailored to the needs of international commerce.

Official statements by UNCITRAL, the drafter of

the Model Law, re-enforce this interpretation. At the

time it completed the 2006 revisions to the Model Law,

UNCITRAL also adopted an “Interpretive Instrument”

governing the New York Convention. See Interpretive

Instrument on the New York Convention in A Guide

to the 2006 Amendments to the UNCITRAL Model

Law on International Commercial Arbitration 603-04

(Howard Holtzmann, et al., 2015). In relevant part,

that Interpretive Instrument recommends that Article

II of the New York Convention not be interpreted to

impose an “exhaustive” form requirement on arbitration agreements but, instead, should be interpreted as

setting forth an exemplary form, leaving to member

States the authority to adopt less rigid rules. Id. at

605. That Interpretive Instrument offers especially

compelling proof that the signatory states to the New

York Convention did not intend the inflexible interpretation of Article II adopted by the court below. See

id. at 608-09.

The statutory frameworks of other signatory nations

not adopting the UNCITRAL Model Law buttress

this view. France is especially illustrative. Like the

United States, France has not adopted the UNCITRAL

Model Law but, instead, developed its own freestanding international arbitration law. Like the abovedescribed other signatory nations, France’s international arbitration law does not impose a minimum

form requirement on international arbitration agreements and employs a commercially flexible approach

to the involvement of parties other than those that

have formally signed an international contract containing an arbitration clause. See 1 Born, International

Commercial Arbitration § 5.02[A][5][g] at 707-08 (French

legislation); id. § 10.02[E] at 1444-55 (describing French

“group of companies” doctrine developed specifically

for the arbitration context).

b. Judicial Decisions

Consistent with their national arbitration legislation and true to the above-described purposes of the

New York Convention, numerous signatory states

have enforced arbitration agreements in circumstances

where one (or more) of the parties has not formally

signed the agreement. See generally 1 Born, International

Commercial Arbitration § 10.02 at 1418-84. For example,

a 2003 decision by the Swiss Federal Tribunal held

that Article II (2) of the New York Convention does

not preclude extension of an arbitration agreement to

non-signatories. Instead, according to the Swiss court,

from the moment an arbitration clause exists, the

lack of a signature does not bar “extension” of the

agreement. Judgment of 16 October 2003, 22 ASA

Bull. 364, 386 (2004). Similarly, courts in other

countries have adopted the “group of contracts”

doctrine whereunder a court decides “whether an

arbitration clause present in one contract can be

extended to related contracts, notwithstanding their

formal independence.” A. M. Steingruber, Consent in

International Arbitration (2012) (describing the “group

of contracts” cases and stating that “courts consider

whether an arbitration clause present in one contract

can be extended to related contracts, notwithstanding

their formal independence”); accord P. Leboulanger,

Multi-Contract Arbitration, 13 Journal Int’l Arb. 47

(1996) (discussing the group of contracts cases). And

while courts in civil-law systems may not utilize

concepts like estoppel to address fact patterns involving non-signatories, “civil law authorities have

reached comparable results to those provided under

most forms of estoppel by different avenues.” 1 Born,

International Commercial Arbitration § 10.02[K] at

1476-77. See also J.J. Sentner, Who is Bound By

Arbitration Agreements? Enforcement by and Against

Non-Signatories, 6 Bus. L. Int’l 55, 65 (2005) (noting

that, while continental courts typically do not apply a

doctrine denominated estoppel, “the same result is

frequently achieved in European cases through the

application of the theories of good faith, ostensible

authority or apparent mandate”).

To be sure, a review of signatory state practice

reveals historical counterexamples. See P. Sanders,

A Twenty Years’ Review of the Convention on the

Recognition and Enforcement of Foreign Arbitral

Awards, 13 Int’l Lawyer 269, 278, 281 (1979). Such

jurisprudence simply demonstrates that the New York

Convention necessarily operates in tandem with

national law (whether the FAA, the UNCITRAL Model

Law or something else), giving rise to some variation

among signatory states. While state practice will

vary, amicus has located no country taking the

extreme position adopted by the court below: reading

the New York Convention to preclude enforcement of

any arbitration agreement unless that arbitration

agreement is in writing and “signed by the parties

before the Court or their privities.” Put simply,

that rule lies at the polar extreme of state practice

and does not represent a correct construction of a

treaty designed to promote international commercial

arbitration.

* * *

In sum, faithful application of the tools governing

treaty interpretation reveal that the Carlisle doctrine

is not “in conflict” with the New York Convention.

B. The Carlisle doctrine is not “in conflict”

with Chapter 2 of the Federal Arbitration

Act.

As noted above, Section 208’s residual application

clause also requires that a provision of Chapter 1 not

be “in conflict” with Chapter 2. The lower court identified no such conflict, and a straightforward application

of this Court’s tools of statutory interpretation reveals

none.

Begin with the text. Nothing in Chapter 2 expressly

precludes application of the Carlisle doctrine or otherwise sets forth a different rule governing the participation

in an international commercial arbitration of parties

that have not formally signed a contract containing an

arbitration clause.

Beyond text, the structure of Chapter 2 reveals

that Congress sought to promote the enforcement of

international commercial arbitration agreements, not

to inhibit the framework that prevailed prior to the

United States’ accession. Section 202 offers the most

obvious indication. The first sentence of Section 202

provides that the Convention applies to “[a]n arbitration agreement … arising out of a legal relationship,

whether contractual or not, which is considered as

commercial, including a transaction, contract, or agreement described in section 2 of this title … .” 9 U.S.C.

§ 202 (emphasis added). This express reference to

Section 2 suggests that Congress believed its principles were compatible with Chapter 2. These presumably

include doctrines enabling the participation of certain

parties other than those that have formally signed the

contract containing the arbitration clause.

Other aspects of Chapter 2’s structure reveal Congress’

purpose to enhance the enforceability of international

commercial agreements falling under the Convention.

For example:

• Cases are brought more easily in federal court:

Section 203 authorizes federal subject matter

jurisdiction in cases arising under the Convention whereas Chapter 1 of the FAA does not

provide an independent basis for federal subject

matter jurisdiction. Compare 9 U.S.C. § 203,

with 9 U.S.C. § 4. Similarly, Section 205 contains a generous removal provision, authorizing

removal on the basis of a federal question in the

petition for removal and at any time prior to

trial, whereas Chapter 1 lacks such expansive

removal provisions. See 9 U.S.C. § 205.

• District courts have more expansive equitable

powers to compel arbitration: Section 206

authorizes federal courts to direct arbitration to

be held in the forum specified in the agreement,

including a foreign one, whereas Chapter 1

limits the federal court’s equitable power to

ordering arbitration only within its own district.

Compare 9 U.S.C. § 206, with 9 U.S.C. § 4. See,

e.g., National Iranian Oil Co., 817 F.2d at 326.

• Awards are more easily enforced: Section 207

establishes a three-year period for enforcing

awards after they are made whereas Chapter 1

establishes a one-year period. Compare 9 U.S.C.

§ 207, with 9 U.S.C. § 9. See, e.g., Sanluis Devs.

L.L.C. v. CCP Sanluis, L.L.C., 556 F. Supp. 2d

329 (S.D.N.Y. 2008).

The upshot of this structural comparison between

Chapter 1 and Chapter 2 is that Congress intended

for the “statutory policy of rapid and unobstructed

enforcement of arbitration agreements,” to apply with

special force in the international setting. Moses H.

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.

1, 23 (1983). Section 208’s residual application clause

simply helped to ensure that the occasionally more

restrictive provisions of Chapter 1 did not impede the

enforcement of international commercial arbitration

agreements or awards. It was never intended to choke

the enforcement of such agreements falling under the

Convention or to render them less enforceable than

their non-convention (or domestic) counterparts.

The sparse legislative history surrounding ratification of the Convention and enactment of the

implementing legislation supports this view. The

United States waited ten years to ratify the New York

Convention and another two years to complete implementing legislation. These delays complicated efforts

by American businesses to obtain enforcement of arbitration agreements and awards in other countries

(especially those countries that had already acceded to

the New York Convention and deposited a reciprocity

reservation). In response, lawmakers sought to “serve

the best interests of Americans doing business abroad

by encouraging them to submit their commercial disputes to international arbitration.” S. Rep. No. 91702, at 3 (1970). See also H.R. Rep. No. 91-1181, at 2

(1970) (“In the committee’s view, the provisions of [the

implementing legislation] will serve the best interests

of Americans doing business abroad by encouraging

them to submit their commercial disputes to impartial

arbitration for awards which can be enforced in both

U.S. and foreign courts.”). Hearing testimony and

floor statements likewise indicate that a core reason

for the Convention’s ratification and the enactment of

implementing legislation was to harness “the beneficial effects it will produce for the foreign commerce of

the United States.” S. Rep. No. 91-702, at 3 (1970),

at 6 (statement of Ambassador Richard D. Kearney,

Office of the Legal Adviser). See also S. Exec. Rep. No.

90-10, at 5 (1968) (statement of Ambassador Richard

D. Kearney, Office of the Legal Adviser) (“The [New

York Convention] protects the American businessman

by insuring that agreements to arbitrate and arbitral

awards will be enforced in the other countries party to

the convention.”); 116 Cong. Rec. 22,732-33 (statement

of Rep. Fish) (noting that accession to the Convention

would “foster[] international trade” and “contribute to

our Nation’s commercial life”). By contrast, nothing in

this legislative history shows a congressional intent to

upend the settled rules governing non-signatories.5

* * *

In sum, faithful application of the tools governing

the interpretation of federal statutes reveal that the

Carlisle doctrine is not “in conflict” with Chapter 2.

C. The Case Should Be Remanded for

Further Proceedings.

Rejection of the lower court’s categorical rule leaves

open a second-order question: namely in a case arising

under the New York Convention, what is the “relevant”

law under the Carlisle doctrine. Courts (both in the

United States and elsewhere) divide over the answer

to this second-order question, and at least five answers

are possible. First, some authorities, extending Carlisle,

A few snippets of legislative history raise the question

whether the Convention “applies only in those cases where the

persons involved have voluntarily accepted arbitration.” S. Exec.

Rep. No. 90-10, at 1. See also S. Rep. No. 91-702, at 6, 10

(statement of Ambassador Richard D. Kearney, Office of the

Legal Adviser); 116 Cong. Rec. 22,732 (statement of Rep. Fish).

Read in context, these statements simply assuage any concerns

that the Convention could require arbitration absent any agreement whatsoever. They do not support the entirely different

proposition that, in case of an existing agreement (as is the case

here), Congress meant to displace doctrines governing the parties

that may invoke it. If Congress had intended such a radical

change to longstanding practice, surely there would have been

some reference to it in the legislative history. In this case, there

is none. See Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991)

(“Congress’ silence in this regard can be likened to the dog that

did not bark.”).

apply state law to Chapter 2 cases. See Restatement

U.S. Law of Int’l Comm. and Investor-State Arb.

§ 2-3 Reporters’ Note e (2019) (collecting authorities).

Second, other federal courts, viewing Convention cases

as disputes arising under federal law, apply federal

common law. See 1 Born, International Commercial

Arbitration § 10.05[A] at 1495 n.463 (collecting cases).

Third, drawing on Article V (1)(a) of the New York

Convention, a court could apply the law applicable to

the arbitration clause which, under the separability

doctrine, “may be governed by a different law from the

underlying contract.” Id. § 4.02[A] at 477; see also id.

§ 10.05[C][1] at 1497-99. Fourth, barring an affirmative choice of law governing the arbitration clause, a

court might apply the law of the arbitral forum, again

drawing on Article V (1)(a). See, e.g., Karaha Bodas

Co. v. Perusahaan Pertambangan Minyak Dan Gas

Bumi Negara, 364 F.3d 274, 292 n.43 (5th Cir. 2004).

Finally, some foreign courts and arbitral tribunals

apply international law or transnational law to determine whether an arbitration clause extends to a

party that has not signed the agreement. See 1 Born,

International Commercial Arbitration, § 10.05[A] at

1493-94 (collecting cases). Amicus takes no position on

this second-order issue, and remand will allow further

record development on both the choice-of-law question

and the content of any potentially applicable law.

CONCLUSION

For the foregoing reasons, the judgment of the

Eleventh Circuit should be reversed, and the case

should be remanded for further proceedings.

Respectfully submitted,

STEVEN P. LEHOTSKY

JONATHAN URICK

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, D.C. 20062

(202) 463-5337

PETER B. RUTLEDGE

Counsel of Record

215 Morton Avenue

Athens, GA 30605

(706) 542-7140

borutledge70@gmail.com

Counsel for Amicus Curiae

September 24, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.