US Sup Ct Grants Review to Decide Whether New York Convention Permits Non-Signatory to Compel International Arbitration on Equitable Estoppel Grounds
by Mark Kantor
CPR Speaks Blog
This morning the U.S. Supreme Court granted certiorari and agreed to hear in its next Term the international arbitration case of GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC (Docket No. 18-1048, case documents available at https://www.scotusblog.com/case-files/cases/ge-energy-power-conversion-france-sas-v-outokumpu-stainless-usa-llc/). The dispute addresses whether, under the New York Convention, a non-signatory can compel arbitration. The Question Presented is:
Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
As described in GE’s petition for cert, “Sometimes, a signatory to a contract may sue a non-signatory for claims that arise out of the contract. When that happens, is the signatory bound by the arbitration clause it agreed to in the contract? For domestic arbitration agreements, the answer is yes: Equitable estoppel allows the non-signatory to enforce the arbitration clause. But the Eleventh Circuit [Court of Appeals] held that a non-signatory cannot compel arbitration if one of the parties is a foreign entity. That erroneous holding deepens a 2-to-2 circuit split and warrants this Court’s review.”
Readers will note that GE’s quoted description of the issue speaks confusingly about both (i) a signatory compelling arbitration with a non-signatory and (ii) a non-signatory compelling arbitration with a signatory. One hopes the U.S. Supreme Court will be able to distinguish the two situations and determine whether that distinction is relevant to resolving the question. The 11th Circuit decision declining to compel arbitration rested in part on the non-US nature of one of the parties.
We shall learn within the next year how the U.S. Supreme Court believes non-signatories fit into the commercial arbitration universe.
Mark Kantor serves as an arbitrator and mediator in commercial and investment disputes, and as an Adjunct Professor at the Georgetown University Law Center (Recipient, 2006 Fahy Award for Outstanding Adjunct Professor). Mr. Kantor is a member of the World Bank Group Sanctions Board. He is also Editor-in-Chief of the online journal Transnational Dispute Management. Until he retired from Milbank, Tweed, Hadley & McCloy LLP, Mr. Kantor was a partner in the Corporate and Project Finance Groups of the Firm and resident in the Washington, D.C. office.
Mr. Kantor is a qualified arbitrator and a member of the American Arbitration Association Commercial and International Panels, the AAA's Large Complex Case Roster, the AAA/ICDR's Energy Arbitrators List, the ICC Arbitrator Database, The Chartered Institute of Arbitrators, the London Court of International Arbitration list of arbitrators, the rosters of arbitrators of the Hong Kong, Singapore and Kuala Lumpur International Arbitration Centres, the Pakistani Center for International Investment and Commercial Arbitration roster, the CPR Panel of Distinguished Neutrals for Banking and Finance, the CPR International Panel and the CPR Energy Committee. He is a Chartered Arbitrator of The Chartered Institute of Arbitrators. He is honored in Who’s Who in America; Who’s Who in the World; Who’s Who in American Law; International Who’s Who, Commercial Arbitration; Chambers USA, International Arbitrators; Best Lawyers in America; U.S. News & World Report, Tier 1 International Arbitration; Lifetime Achievement Award from Marquis Who's Who; and Superlawyers. In 2013, he was named Best Lawyers Washington DC International Arbitration - Governmental "Lawyer of the Year." Mr. Kantor was the 2011 recipient of the Arbitral Women Honorable Man Award.
Mr. Kantor is a member of the ADR Advisory Board of the International Law Institute, the Editorial Board of Global Arbitration Review and the Boards of Editors of the Journal of World Energy Law and Business, the Journal of Damages in International Arbitration and the Journal of Technology in International Arbitration. Additionally, he serves as a member of the Editorial Board for investmentclaims.com and as an Associate Editor of the Oil-Gas-Energy Law Intelligence Service. Over the years, he has served repeatedly as Chair and as Vice-Chair of the DC Bar International Dispute Resolution Committee, and the DC Bar International Investment and Finance Committee. Mr. Kantor is the author of Valuation for Arbitration: Compensation Standards, Valuation Methods and Expert Evidence (Kluwer 2008), named Best Book of 2008 in the OGEMID Awards, and “A Code of Conduct for Party-Appointed Experts in International Arbitration – Can One be Found?” 26 Arbitration International 323 (2010), named Best International Dispute Resolution Article of 2010 in the OGEMID Awards.
Mr. Kantor has written extensively on international business matters. In addition to his book Valuation for Arbitration and co-editing Reports of Overseas Private Investment Corporation Determinations, serving as Editor-in-Chief for Transnational Dispute Management and on numerous editorial boards for publications, he has published numerous additional articles and papers.
Mr. Kantor has taught as a faculty member of the International Law Institute and has chaired or spoken at numerous professional conferences.
In 1990, Mr. Kantor was General Counsel of the Resolution Trust Corporation Oversight Board (the U.S. Federal agency responsible for supervision and oversight with respect to the S&L crisis). He served from 1987 until 1999 as Counsel to the American Academy of Diplomacy. Until 2014, he was a Senior Fellow at the Columbia Center for Sustainable International Investment (a joint undertaking of Columbia Law School and the Earth Institute at Columbia University).
Mr. Kantor graduated with honors in 1975 from the University of Southern California and in 1979 from both the University of Michigan's Institute for Public Policy Studies, where he received his master's degree, and the University of Michigan Law School. He joined Milbank Tweed in 1979, and was assigned to the Firm's Hong Kong office for several years in the 1980s. In late 1986, he became a partner in the Firm. He relocated to the Washington, D.C. office in 1987. Mr. Kantor retired from Milbank Tweed at the end of 1999.
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