BRITTANIA-U NIGERIA, LIMITED, Plaintiff-Appellant v. CHEVRON USA, INCORPORATED; Ali Moshiri; Moncef Attia, Defendants-Appellees
No. 16-20690
United States Court of Appeals, Fifth Circuit.
FILED August 9, 2017
866 F.3d 709
HAYNES, Circuit Judge
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s dismissal of the claims against Snow and Romero, VACATE the dismissal of the claims against the City, and REMAND the case for further proceedings consistent with this opinion.
KING, Circuit Judge, specially concurring:
I agree with the panel majority that, on this record, the decision to grant qualified immunity to Officers Snow and Romero (and judgment for the City) was, at the very least, premature. Accordingly, I concur in the judgment.
Brian Scott Humphrеy, II, Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, Houston, TX, for Plaintiff-Appellant.
Michael Sammie Goldberg, Kevin Thomas Jacobs, Esq., Jonathan Mark Little, Aaron Michael Streett, Baker Botts, L.L.P., Barrett Hodges Reasoner, Esq., Brian Turner Ross, Litigation Counsel, Gibbs & Bruns, L.L.P., Houston, TX, for Defendants-Appellees.
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
Plaintiff Brittania-U Nigeria, Limited (“Brittania-U“) sued Defendants Chevron U.S.A. Inc. (“Chevron“), Ali Moshiri, and Moncef Attia (cоllectively, “Defendants“) for fraud, misrepresentation, and tortious interference with business relations arising out of a bidding process for oil leases in Nigeria. Brittania-U now appeals the district court‘s denial of its motion to remand and the grant of Defendants’ motions to dismiss based on an arbitrаtion provision in a confidentiality agreement between Brittania-U and Chevron. Finding no error, we AFFIRM.
I.
In 2013, Chevron Nigeria, Limited, a division of Chevron, opened a bidding process for the sale of its interests in three Oil Mining Leases (“leases“) in Nigeria.1 BNP Paribas Securities Corp. (“BNP Paribas“) served as Chevron‘s finanсial advisor and agent for the potential transaction. Attia, then an employee of BNP Paribas, invited Brittania-U to participate in the bidding process. Chevron employee, Moshiri was also involved in the negotiations.
Early in the bidding process Brittania-U signed a confidentiality agreement, which Chevron also executed. The confidentiality agreement contained an arbitration provision:
If the dispute is not resolved pursuant to direct negotiations . . . then the dispute shall be finally resolved by binding arbitration and either Party may initiate such arbitration by giving notice to the other Party. The arbitration shall be conducted in accordance with the United Nations Commission on International Trade Law (“UNCITRAL“) Arbitration Rules, except to the extent of conflicts between the UNCITRAL Arbitration Rules.
The confidentiality agreement‘s arbitration provision also stated that “[t]he arbitrаtor(s) has the power to rule on objections concerning jurisdiction, including the existence or validity of this arbitration provision and existence or the validity of this Agreement.”
Chevron removed the case to federal court. Brittania-U filed a motion to remand, and eаch defendant filed a motion to dismiss. The district court denied Brittania-U‘s motion to remand and granted Defendants’ motions to dismiss. Brittania-U now timely appeals.
II.
We review a denial of a motion to remand de novo. Int‘l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 199 (5th Cir. 2016). We also review de novo a motion to dismiss in favor of arbitration, Gilbert v. Donahoe, 751 F.3d 303, 306-07 (5th Cir. 2014).
III.
A.
Chevron asserted two bases for jurisdiction in its notice of removal: first, that diversity jurisdiction exists under the diversity statute,
We disagree with Brittania-U and find that jurisdiction exists under the Convention. The Convention Act provides United States courts with jurisdiction over “[a]n action or proceeding falling under the Convention . . . regardless of the amount in controversy.” Safety Nat‘l Cas. Corp. v. Certain Underwriters At Lloyd‘s, London, 587 F.3d 714, 724 (5th Cir. 2009) (alterations in original) (citation omitted); see also
But the presence of a non-U.S. party is not required in all circumstances. Freudensprung, 379 F.3d at 340. “Convention [jurisdiction] may apply in such cases provided that there is a ‘reasonable relation’ between the parties’ commercial relationship and some ‘important foreign element.‘” Id. (quoting Jones v. Sea Tow Servs., Inc., 30 F.3d 360, 366 (2d Cir. 1994); Lander Co. v. MMP Invs., Inc., 107 F.3d 476, 481 (7th Cir. 1997)). For an arbitration agreement that is “entirely between citizens of the United States” to fаll under the Convention Act, it must “involve[] property located abroad, envisage[] performance or enforcement abroad, or ha[ve] some other reasonable relation with one or more foreign states.”
Removal under the Convention was also proper. The Convention‘s removal provision,
Here, the agreement relates to Brittania-U‘s suit. Like the defendant‘s argument in Beiser, Defеndants’ arguments are all attempts to get Brittania-U to submit to arbitration. Beiser, 284 F.3d at 669. Therefore, “the arbitration agreements [here] could conceivably affect the disposition of [Brittania-U‘s] claims.” See id. at 670. Accordingly, Chevron‘s removal was proper, and we affirm the district court‘s denial of Brittania-U‘s motion to remand. We pretermit the issue of whether removal was proper under the diversity statute because a court needs only a single jurisdictional basis to retain its power.
B.
Brittania-U also contends that the district court erred in dismissing the case after concluding that the аrbitration provision delegated “gateway issues,” such as “the validity and enforcement” of the arbitration provision. We disagree with Brittania-U and affirm.
“Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who hаs the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (citations omitted). In Kubala v. Supreme Production Services, Inc., 830 F.3d 199 (5th Cir. 2016), we provided an in-depth explanation of who decides what when a contract includes an arbitration provision. We reasoned that the “[e]nforcement of an arbitration agreement involves two analytical steps. The first is contract formation—whether the parties entered into any arbitration agree-
In making this analysis, “[w]e will not assume that the parties agreed to arbitrate arbitrability [u]nless the parties clearly and unmistakably prоvide otherwise.” Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th Cir. 2012) (second alteration in original) (quoting AT & T Techs., Inc. v. Commc‘ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). If a court does conclude that the parties to an arbitration agreement clearly and unmistakably delegated arbitrability, it “must refer the claim to arbitration[;]” however, if a court concludes that the parties did not, it “must perform the ordinary arbitrability analysis.” Kubala, 830 F.3d at 203. Accordingly, we must decide if Defendants and Brittania-U clearly and unmistakably provided for the arbitrators to decide arbitrability. See Petrofac, 687 F.3d at 675.
Here, the arbitration provision‘s adoption of the United Nations Commission on International Trade Law (“UNCITRAL“) Arbitration Rules clearly and unmistakably delegates arbitrability. The аrbitration provision specifically states that “[t]he arbitration shall be conducted in accordance with [UNCITRAL] Arbitration Rules.”
In Petrofac, 687 F.3d at 675, we concluded that incorporating rules from the American Arbitration Association (“AAA“) clearly and unmistakably expressed the parties’ intent to leave the quеstion of arbitrability to an arbitrator. The AAA Rules at issue in Petrofac stated that “[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” Id. (alteration in original). In coming to its holding, “[w]e agree[d] with most of our sister circuits.” Id.
Three of our sister circuits have held that the language from the UNCITRAL Arbitration Rules also clearly and unmistakably delegates arbitrability. See Chevron Corp. v. Ecuador, 795 F.3d 200, 207-08 (D.C. Cir. 2015), cert. denied, 136 S.Ct. 2410, 195 L.Ed.2d 780 (2016); Oracle Am., Inc. v. Myriad Group A.G., 724 F.3d 1069, 1073 (9th Cir. 2013); Schneider v. Kingdom of Thailand, 688 F.3d 68, 73-74 (2d Cir. 2012). Although the UNCITRAL Rules do not delegate arbitrability as obviously as the AAA Rules in that they do not mention explicitly the arbitrator‘s ability tо determine the scope or validity of the arbitration agreement, we nevertheless agree with the other circuits’ conclusions that incorporation of the UNCITRAL Rules clearly and unmistakably delegates arbitrability by granting the arbitrators authority to decide their own jurisdiction. See Oracle Am., 724 F.3d at 1073 (“By giving the arbitral tribunal the authority to decide its own jurisdiction, . . . the . . . UNCITRAL rules vest the arbitrator with the apparent authority to decide questions of arbitrability.“). The district court therefore did not err in dismissing this dispute so that it may be arbitrated.
Moshiri and Attia did not sign the confidentiality agreement and its arbitration provision. But we nevertheless conclude that the delegation of arbitrability
In making this determination, we find Contec Corporation v. Remote Solution, Co., 398 F.3d 205, 211 (2d Cir. 2005) instructive. In Contec, Contec Corporation sued Remote Solution Co., Ltd. (“Remote Solution“) to compel an indemnification dispute to arbitration. Id. at 207. Contec Corporation was a nonsignatory to the indemnification agreement contаining a clause delegating arbitrability but nevertheless sought to enforce the delegation clause in its dispute with Remote Solution as a successor in interest to a signatory. See id. The Second Circuit held that the agreement‘s delegation of arbitrability applied to the dispute. Id. at 211. In сoming to this conclusion, the court noted that the “the party seeking to avoid arbitration was a signatory to the arbitration agreement.” Id. The court reasoned that this was “an important indicator of [the signatory‘s] expectation and intent when binding itself to the . . . [a]greement,” which justified binding the signatory, Remote Solution, to the arbitration provision‘s delegation clause. See id.
Like in Contec, the Defendants here—a signatory and two nonsignatories—are attempting to enforce the arbitration provision against signatory Brittania-U. Although the confidentiality agreement does not expliсitly state that it binds nonsignatories to the agreement, it does explicitly bind Brittania-U. Therefore, as in Contec, the language of the agreement clearly and unmistakably delegates arbitrability, even with regard to Brittania-U‘s dispute with Moshiri and Attia.
Accordingly, the district court did not err in recognizing that the confidentiаlity agreement‘s arbitration provision delegated the question of arbitrability to the arbitrators.
AFFIRMED.
LOGISTICARE SOLUTIONS, INCORPORATED, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
No. 16-60029
United States Court of Appeals, Fifth Circuit.
FILED August 9, 2017