921 F.3d 766
9th Cir.2019Background
- Castro, a Filipino seaman, was injured aboard a Tri Marine vessel and negotiated a monetary settlement while in the Philippines; the settlement documents included arbitration clauses designating American Samoa as the seat/venue.
- Before any arbitration proceeding was initiated, Castro signed a release in the Philippines and received an advance payment; Tri Marine asserts the parties then submitted the settlement for arbitration approval.
- Tri Marine arranged a brief, single meeting in the public lobby of the National Conciliation and Mediation Board where arbitrator Gregorio Biares reviewed documents with Castro and signed a one-page “order” recognizing the settlement and dismissing the “case.” No case number, submission agreement, or typical arbitral pleadings were filed.
- Castro later sued in Washington state court for additional surgery costs; Tri Marine removed under the New York Convention and moved to confirm the lobby order as a foreign arbitral award. The district court confirmed the order and dismissed Castro’s suit.
- The Ninth Circuit reviewed whether the lobby order qualified as an “arbitral award” falling under the New York Convention and whether the Convention’s enforcement procedures applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the lobby order is an "arbitral award" under the New York Convention | Castro: No—there was no dispute submitted to an arbitral tribunal; parties settled before any arbitration; procedural requirements were not followed | Tri Marine: Yes—the arbitrator issued an order approving settlement; therefore it is an award enforceable under the Convention | Held: Not an arbitral award—no dispute remained to arbitrate, proceedings did not follow agreed seat/rules, and timing precluded a consent award |
| Whether parties waived their arbitration venue and procedural terms by meeting in the Philippines | Castro: No—he was led to believe he was merely picking up a check; setting and lack of formalities show no waiver | Tri Marine: Implied waiver or consent to local approval by meeting with arbitrator in the Philippines | Held: No waiver shown; convening in a lobby and lack of agreed procedural steps did not evidence assent to change venue or rules |
| Whether a post-settlement approval by an arbitrator can become a consent award absent prior constitution of a tribunal | Castro: Consent award doctrine requires tribunal to exist during arbitration; settlement after full settlement cannot be converted into award | Tri Marine: The arbitrator’s approval rendered the settlement final and enforceable as an award | Held: Timing matters—consent awards require the tribunal to have been constituted and arbitration pending when settlement occurs; here settlement preceded any arbitral process |
| Effect on jurisdiction under the Convention Act (removal/subject-matter jurisdiction) | Castro: If no arbitral award, federal jurisdiction under Convention Act may be lacking | Tri Marine: Case "relates to" an arbitration agreement so removal and jurisdiction proper | Held: Court remanded jurisdictional question to district court for further analysis; did not decide jurisdiction on appeal |
Key Cases Cited
- Scherk v. Alberto-Culver Co., 417 U.S. 506 (U.S. 1974) (New York Convention promotes enforcement of international arbitration agreements)
- Polimaster Ltd. v. RAE Sys., Inc., 623 F.3d 832 (9th Cir. 2010) (Convention Act affords deference to foreign arbitral awards; narrow defenses to confirmation)
- Zeiler v. Deitsch, 500 F.3d 157 (2d Cir. 2007) (confirmation under the Convention is a summary proceeding, not for complex factual disputes)
- Rogers v. Royal Caribbean Cruise Line, 547 F.3d 1148 (9th Cir. 2008) (discussing the Convention Act’s implementation)
- CVS Health Corp. v. Vividus, LLC, 878 F.3d 703 (9th Cir. 2017) (statutory interpretation reviewed de novo)
- Hosaka v. United Airlines, Inc., 305 F.3d 989 (9th Cir. 2002) (treaties reviewed de novo)
- United States v. Sperry Corp., 493 U.S. 52 (U.S. 1989) (consent award example where arbitration was initiated then parties settled)
- Infuturia Glob. Ltd. v. Sequus Pharm., Inc., 631 F.3d 1133 (9th Cir. 2011) ("relates to" language in Convention Act has broad scope)