Lead Opinion
Defendants-Appellants filed a motion for rehearing complaining of this court’s order of dismissal entered March 11, 2004. After considering this motion for rehearing, which we treat as a petition for recon
Plaintiff-Appellee Vinod Kumar Dahiya filed this maritime personal injury action in Louisiana state court against several Defendants-Appellants: his employer, Neptune Shipmanagement Services; the owner of the ship on which he was injured, Talmidge International; co-owners of the fleet to which the ship belongs, American Eagle Tankers and American Eagle Tankers Agencies; and the ship’s insurer, Brit-tania Steam Ship Insurance Association. Appellants removed to federal court on the grounds that their dispute with Dahiya was subject to an arbitration agreement governed by the Convention on the Recognition and Enforcement of Foreign Arbi-tral Awards (the “Convention”), 9 U.S.C.A. §§ 201-208 (West 1999 & Supp.2003). The district court remanded the case to state court for lack of subject matter jurisdiction and denied Appellants’ motions to comрel arbitration and to stay the proceedings. Because this remand deprives us of appellate jurisdiction to consider any part of the district court’s order, we dismiss this appeal.
I.
In 1999, Dahiya and Neptune signed two documents — a “deed” and a “bond” — in New Delhi, India. Together, the documents provided that Dahiya would receive two years of training, then work for Neptune for two years. The deed included an arbitration clause providing that any dispute arising out of the deed would be subject to arbitration in Singapore or India.
As part of his training, Dahiya worked on the M/T EAGLE AUSTIN, a vessel owned by Talmidge. Dahiya suffered burns while operating the vessel’s incinerator and was later evacuated to a Louisiana hospital, where he received treatment.
Dahiya returned to India, but he sued Neptune, Talmidge, and the three other Appellants in Louisiana state court. Dahi-ya’s suit, brought under the Savings to Suitors Clause, 28 U.S.C.A. § 1333(1) (West 1993), alleged that Appellants had breached obligations under the Jones Act, 46 U.S.C.A. app. § 688 (West 2003), general maritime law, and other applicable law.
Appellants invoked federal jurisdiction as a federal question, see 28 U.S.C.A. § 1441(b) (West 1994), and under § 205 of the Convention, 9 U.S.C.A. § 205 (West 1999),
Once in federal court, Appellants moved to compel arbitration and to stay the proceedings or, in the alternative, to dismiss Dahiya’s suit. Dahiya moved to remand. Dahiya argued that the deed’s terms did not qualify as an arbitration agreement
The district court sided with Dahiya and, in a single order, remanded the case to state court and denied Appellants’ motions to stay proceedings and to compel arbitration. The court began its order by assessing the validity of what it called the “forum selection clause” — i.e., the arbitration clause in the deed between Dahiya and Neptune. The court held that this clause was invalid because forum selection clauses contravene Louisiana public policy. The court then turned directly to the question of its jurisdiction. The court began by noting that because Appellants failed to remove within thirty days, federal jurisdiction hinged entirely on § 205. With respect to jurisdiction under § 205, the court reasoned that because the deed contained no valid forum selection clause, the parties had not entered an agreement to arbitrate valid under the Convention. The court therefore concluded that it had no jurisdiction under § 205, remanded the case, and denied Appellants’ pending motions.
Appellants sought review of the district court’s order and moved for a stay of the the ongoing state court proceedings. Da-hiya moved to dismiss for lack of appellate jurisdiction. Both motions have been carried with the case.
II.
Our analysis begins and ends with Dahi-ya’s motion to dismiss, for in the absence of appellate jurisdiction, we have no authority to review the district court’s order.
We cannot review the remand itself. After a district court remands a case to state court for lack of subject matter jurisdiction, 28 U.S.C. § 1447(d) bars a federal appellate court from reviewing the remand ruling “no matter how erroneous.” Arnold v. State Farm Fire & Cas. Co.,
That Appellants removed under § 205 of the Convention does not vest us with jurisdiction despite § 1447(d). In cases removed under § 205, “[t]he procedure for removal of causes otherwise provided by law shall apply.” 9 U.S.C.A. § 205. This “procedure for removal” includes the strictures of § 1447(d). Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London,
District court determinations accompanying an order of remand are reviewable in spite of § 1447(d) if they meet the requirements first outlined in City of Waco, Texas v. United States Fidelity & Guaranty Co.,
The district court’s refusal to compel arbitration and to stay proceedings is not reviewable under Waco because that refusal was not conclusive. Our precedent “has defined conclusiveness, in terms of whether the order was ‘substantive’ or ‘jurisdictional’: if a decision is simply jurisdictional it is not conclusive.” Doleac ex rel. Doleac v. Michalson,
In this case, the district court determined that the arbitration clause was invalid in the process of ascertaining whether it had subject matter jurisdiction. Under Soley, Linton, or Angelides, that determination is jurisdictional and therefore has no preclusive effect in state court. Thus, becаuse the district court’s refusals to compel arbitration and to stay proceedings were not conclusive, those refusals are not reviewable under Waco.
In their efforts to circumvent § 1447(d), Appellants rely on Beiser v. Weyler,
Appellants insist, and we recognize, that the argument for remand advanced by Da-hiya and accepted in the district court closely resembles the argument for remand we disapproved in Beiser,
III.
Because we lack appellate jurisdiction to review any facet of the, district court’s order, we cannot address the district court’s discussion of international arbitration law. We therefore GRANT Dahiya’s motion to dismiss this appeal and DENY as moot Appellants’ motion to stay proceedings pending arbitration.
DISMISSED.
Notes
. The bond included a similar arbitration clause, but only the deed's arbitration clause is at issue in this case because the dispute arose during Dahiya’s training.
. Section 205 provides that "[w]here the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention, the defendant or the defendants may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States for the district and division embracing the place where the action or proceeding is pending.”
. While this appeal was pending, Dahiya’s state court suit proceeded. Even before we heard oral arguments, a Louisiana trial court overruled Appellants' exceptions regarding arbitration and jurisdiction. Subsequently, Appellants unsuccessfully sought supervisory writs from the Louisiana Court of Appeals and the Louisiana Supreme Court.
Based on the denial of these writs, Dahiya filed in this Court a motion to dismiss for.res judicata. Dahiya claimed that the Louisiana trial court rulings’ and the denial of supervisory writs constituted final judgments and precluded Appеllants from seeking a motion compelling arbitration from this Court. Appellants failed to respond in time, and we dismissed the appeal. Appellants promptly filed a motion for panel rehearing, which we treated as a motion for panel reconsideration. Because we have granted that motion, we now turn to the other issues in this case.
. Section 16 is not a part of the Convention, but its provisions are applicable to cases brought under the Convention. See 9 U.S.C.A. § 208 (West Supp.2003).
. In Beiser, we speculated in dicta about what would have happened had the district court remanded the case. Id. at 672-74. We recognized that § 1447(d) would have deprived us of appellate jurisdiction and led to the unappealing result of having state courts handle questions of federal arbitration law. Id.
. In Beiser, the plaintiff argued that the’ district court should have remanded because his case did not "relate to” the arbitration agreement on which defendants relied. Id. at 668. We rejected the plaintiff’s theory as inconsistent with the plain language of § 205 and the federal policy favoring arbitration. Id. at 668-74. In particular, we advised district courts against conflating а jurisdictional analysis with an evaluation of the merits of a defendant’s motion to compel arbitration. Id. at 670-72.
Dissenting Opinion
dissenting:
I > agree with the majority that if the district court’s remand determination was based on a lack of removal jurisdiction, 28 U.S.C. § 1447(d) likely precludes, us from
I. This Court can review the district court’s denial of the motion to compel arbitration and stay proceedings.
I firmly believe that an order denying arbitration, such as the district court entered here, is reviewable as a separable and collateral order. See Doleac ex rel. Doleac v. Michalson,
A. Separability of the denial of arbitration.
In City of Waco v. United States Fidelity & Guaranty Co.,
In the district court’s single order, the determination that no agreement to arbitrate existed did precede the remand order “in logic.” Naturally, without a valid arbitration agreement in play, any motion to compel arbitration would have to be denied. Here, the finding that no valid arbitration agreement existed under Louisiana policy and law also provided the basis “in logic” to consider remand; it served as the “impetus for remanding the case.” Doleac,
Likewise, although the denial of arbitration and the remand stemmed from the same physical order, the arbitration determination also preceded the remand “in fact.” It would have had to, because the opposite sequence of events (remand, then denial of arbitration) would have meant the district cоurt rendered a meaningless denial of arbitration because at that point of remand jurisdiction would have already passed to the state court. Also, the “in fact” inquiry considers if:
[T]he issue has independent relevance in adjudging the rights of the parties (i.e., relevance beyond determining the existence of federal subject matter jurisdiction), the decision is separable and falls within the reasoning of City of Waco— even if it also happens to have an incidental effect on the court’s jurisdiction.
Doleac,
After considering whether the order is separable “in logic” and “in fact,” this Court must determine whether the order is conclusive, that is, functionally unre-viewable in the state court. Doleac,
Usually, a determination that a court lacks jurisdiction is not considered a judg
Here, a finding that no valid arbitration agreement existed equated precisely to а “judgment on the merits” of the efficacy of such arbitration clause and shut off any arbitration proceedings brought by Appellants. Unlike in Doleac where the amendment allowing joinder merely changed the court in which the same claims would be litigated,
As for the arbitration issue having been “actually litigated” and “necessary to the outcome,” we indicated in' Falcon that when a federal district court determines it does not have subject matter jurisdiction, findings necessary to make that decision have collateral estoppel consequences in a state court.
B. Appealability of the denial of arbitration.
Having found the arbitration determination separable, the second step under Dol-eac is that the separable ruling must also be appealable аs a final decision under 28 U.S.C. § 1291 or under an exception to finality.
Here, Appellants argue that 9 U.S.C. § 16 provides direct appealability of the denial of arbitration. Section 16(a)(1)(A) clearly does provide for direct appeals from orders “refusing a stay of any action under section 3 of this title,” and § 16(a)(1)(C) clearly allows for direct appeals from orders “denying an application under section 206 of this title to compel arbitration.” 9 U.S.C.A. § 16(a) (West 2004). However, because the district court ultimately did not believe it had removal jurisdiction under the legislation adopting the Convention, 9 U.S.C. § 201 et seq., its denial of Appellants’ motion to compel arbitration could not have been under § 206 and likewise its denial of Appellants’ motion to stay proceedings pending arbitration could not have been under § 3. Thus, this Court cannot rely on 9 U.S.C. § 16 itself for the order’s appealability.
To determine whether a nonfinal order is appealable, the common analysis entails the approach first outlined in Cohen v. Beneficial Industrial Loan Corp.,
First, the denial of arbitration by the district court here was anything but tentative, informal, or incomplete. The determination that no valid arbitration clause existed due to Louisiana law and policy conclusively decided the disputed legal question of the validity of Appellants’ arbitration defense.
Second, the denial of arbitration did not in any way affect, nor was it affected by, the underlying merits of Dahiya’s Jones Act maritime action. The district court’s denial of arbitration dealt solely with Appellants’ separate right to assert arbitration as a defense, not with any right of Dahiya to recover on his negligence and unseaworthiness claims.
Third, as already discussed in Part I.A., because the state court could be bound by collateral estoppel on remand as to the district court’s finding on the validity of Dahiya’s arbitration agreement, the denial of arbitration would be effectively unre-viewable on the appeal from final judgment.
Because in Moses H. Cone Memorial Hospital v. Mercury Construction Corp.,
2. Interlocutory decision appealable per 28 U.S.C. §. 1292.
The Cohen collateral order exception is not the only means to achieve appellate review of the district court’s denial of arbitration. See Peoples,
In Sedco, Inc. v. Petroleos Mexicanos Mexican National Oil Co. (Pemex),
In National Iranian Oil Co. v. Ashland Oil, Inc.,
Title 9’s section 16 on appeals was enacted by Congress in 1988 and amended in 1990. 9 U.S.C.A. § 16 note (West 2004). Thus, we decided Tai Ping, City of Meridian, Sedco, and National Iranian Oil against a backdrop where the FAA and the Convention did not specifically provide for immediate appeals of denials of arbitration (in admiralty or otherwise). See also Peoples,
. In Tejidos de Coamo, Inc. v. International Ladies’ Garment Workers’ Union,
This Court has already agreed with the First Circuit that district court decisions favorable to arbitration, such as orders compelling arbitration and grants or denials of stays of legal proceedings pending arbitration of claims found arbitrable, are not appealable as injunctions under § 1292(a). Adams v. Georgia Gulf Corp.,
Though the district court here determined that the arbitration clause in Dahi-ya’s deed did not fall under the Convention due to its invalidity under Louisiana law, this does not change the fact that Appellants sought an injunction favoring the enforcement of arbitration, which the district court refused. As explained earlier, this denial entails serious and potentially irreparable effects. Therefore, I would find the reasoning and analysis of Tejidos persua
II. The district court erred ip, denying Appellants’ motion to compel arbitration and stay proceedings.
Because of what I feel to be the tremendous importance of the issues this case presents not only on the question of re-viewability but also on the merits, I address those merits here. This Court reviews a district court’s refusal to compel arbitration and stay litigation de novo. Cargill Ferrous Int’l v. SEA PHOENIX MV,
A. Presumption of validity of forum selection clauses
The Supreme Court in The BREMEN found that forum selection clauses in international agreements “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.”
Appellants argüe that Louisiana law is completely inapposite. However, this Court in Haynsworth,
There would appear to be two competing policy interests here. By enacting § ■ 23:921, the Louisiana legislature has expressed its concern that in order for forum selection and choice of law clauses in employment contracts to be valid, employees must ratify them subsequent to the incidents giving rise to the claims. La. R.S. § 23:921A(2) (West 2004). The Louisiana Supreme Court, in Sawicki v. K/S STAVANGER PRINCE,
However, the federal policy indicated by the Supreme Court in The BREMEN pulls in the opposite direction entirely. In The BREMEN, the ship at issue “was to traverse the waters of many jurisdictions.... That the accident occurred in the Gulf of Mexico and the barge was towed to Tampa in an emergency were mere fortuities.”
Predictability in the resolution of disputes is prеcisely what Appellants desired and what Dahiya expressly agreed to in his deed here, and precisely what § 23:921 conflicts with and frustrates. If an accident or incident were to occur during and relating to Dahiya’s training and employment under Neptune, notwithstanding in which body of water, Section II.8 of Dahi-ya’s deed clearly anticipated the procedure to be followed — arbitration in either India or Singapore before a specific arbitrator who would apply Indian arbitration law. That this incident occurred in international waters near Louisiana and Dahiya received emergency treatment in Louisiana are “mere fortuities” because Dahiya and
Section 23:921 works to presumptively void all arbitration clauses in employment contracts, no matter what their terms dictate. Not only does this policy directly conflict with The BREMEN’S presumption of validity for forum selection clauses in general, but it conflicts with the proarbi-tration policy set out by Congress in the FAA and the Convention that similarly presumes arbitration provisions to be “valid, irrevocable, and enforceable.” 9 U.S.C.A. § 2 (West 2004). The presumption of validity of arbitration clauses is also what another public policy of Louisiana heavily favors, as evidenced by its legislature’s enactment of La. R.S. § 9:4201, which closely mirrors § 2 of the FAA. See id.; La. R.S. § 9:4201 (West 2004). Thus, Louisiana’s general policy on arbitration is consistent with federal policy that arbitration clauses should be considered presumptively valid.
Given the relative weight of these competing policy concerns, I would find Dahi-ya has not met his heavy burden of showing that the forum selection clause in his deed is unreasonable, and the district court erred in concluding Dahiya had made such a showing.
B. Preemption of state statutes invalidating arbitration agreements.
In addition, any argument that the arbitration clause in Dahiya’s deed is foreclosed by La. R.S. § 23:921 must be tried and tested by preemption analysis. Federal statutes enacted pursuant to the United States Constitution are the supreme law of the land. “[A]ny state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n,
In Southland the Supreme Court held that the FAA preempts conflicting state law and concluded that even state courts cannot apply state- statutes which invalidate arbitration agreements.
For example, in Commerce Park at DFW Freeport v. Mardian Construction Co.,
The Convention was negotiated in 1958 and entered into by the United States in 1970 pursuant to the Constitution’s Treaty power. 9 U.S.C.A. § 201 note (West 2004). That same year Congress adopted enabling legislation, 9 U.S.C. § 201 et seq., to make the Convention “the highest law of the land.” Id.-, Sedco,
Here, the Louisiana statute cited by Da-hiya and relied on by the district court, La. R.S. § 23:921,' presumptively voids any choice of forum or choice of law clause in any employment contract unless expressly ratified by the employee after the occurrence of the subject of the action. This ex post facto approval requirement directly conflicts with § 2 of the FAA, which presumes written provisions for arbitration to be “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C.A. § 2 (West 2004) (emphasis added).
By enacting § 2 of the FAA, incorporated by the Convention in 9 U.S.C. § 208, “Congress precluded States from singling out arbitration provisions for suspect status, requiring instead that such provisions be placed upon the same footing as other contracts.” Doctor’s Assocs., Inc. v. Casarotto,
Therefore, because § 23:921 targets forum selection clauses in employment contracts and regards them as suspect, I would find § 23:921 preempted by both the FAA and the Convention, at least as applied to employment agreements containing arbitration clauses. Thus, I would hold the district court erred by concluding § 23:921 invalidated the arbitration clause in Dahiya’s deed.
C. The arbitration clause in Dahiya’s deed and the Convention.
It is clear that both Congress, in enacting the FAA and the Convention, and the Supreme Court, in interpreting their application to arbitration agreements, have expressed a liberal federal policy favoring the enforcement of arbitration provisions. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
Thus, this Court has outlined a simple four-step analysis for courts to perform: whether “(1) there is an agreement in writing to arbitrate the dispute, (2) the agreement provides for arbitration in the territory of a Convention signatory, (3) the agreement arises out of a commercial legal relationship, and (4) a party to the agreement is not an American citizen.” Id. (citing Sedco,
For the Convention to apply, there must be an agreement in writing to arbitrate the dispute. Francisco,
Here, seaman Dahiya signed a deed covering his 12 months of practical training at-sea, which time would be applied to his three-year Diploma in Maritime Studies. He also agreed in the deed to serve as an employee to Neptune or a company of Neptune’s choosing for a bonded period of two years after receiving his degree and passing his Class V exam. Though Dahiya is correct in saying that Neptune did not
Like the seaman in Francisco, Dahiya signed an employment deed that contained an express arbitration clause. Section II.8 of Dahiya’s deed provided:
Any dispute arising out of this Agreement shall be subject to Arbitration under the Arbitration and Conciliation Act, 1996. The said proceedings shall take place either in. Singapore or in India at the option of the Company. Capt. Kar-anjit Singh, A 64/3, SFS Flats, Saket, New Delhi, shall be appointed as the arbitrator in these proceedings.
This deed was, as in Sphere Drake and Francisco, a contract between Neptune and Dahiya that indisputably contained an arbitral provision whereby “[a]ny dispute arising from [Dahiya’s deed] shall be subject to Arbitration.” Thus, no signature was required; the arbitration clause found within Dahiya’s deed constitutes an agreement in writing under the Convention.
Dahiya also argues that this tort suit is not a dispute covered by the scope of the arbitration clause.
The second requirement for the Convention to apply is that the agreement must provide for arbitration in the territory of a Convention signatory. Francisco,
The third requirement for the Convention to apply is that the agreement arises out of a commercial legal relationship. Francisco,
The final requirement for the Convention to apply is that there must be a party to the agreement who is not an American citizen. Id. at 273. It is clear that Dahiya himself is not an American citizen but an Indian citizen. Further, the other party to the deed, Neptune, is not an American corporation but a Singapore corporation. Thus, I would find the fourth requirement met.
All four requirements having been met here, I would find the arbitration agreement in Dahiya’s deed satisfies the very limited, “low bar” inquiry Congress intended courts to apply when determining whether arbitration agreements fall under the Convention. See Beiser,
. I would like to point out that while the separate' removability provision under 9 U.S.C. § 205 of the Convention Treaty (the "Convention”), enabled at 9 U.S.C. § 201 et seq., states "the procedure for removal of causes otherwise provided by law' shall apply,” it also explicitly relaxes certain requirements under 28 U.S.C. § 1446. That is, removals under the Convention are not subject to the 30-day and one-year time limitations and can occur "at any time before the trial,” and the ground for removal (here, the arbitration provisiоn in an international agreement) does not have to appear on the face of the plaintiff’s state court complaint "but may be shown in the petition for removal.” 9 U.S.C.A. § 205 (West 2004).
Furthermore, the terms of 9 U.S.C. § 16(a)(1)(C) (which is made applicable to the Convention by 9 U.S.C. § 208) expressly provide for an appeal from an order "denying an application under section 206 of this title to compel arbitration,” which immediate ap-pealability is unique to denials of arbitration under the Convention. 9 U.S.C.A. § 16(a)(1)(C) (West 2004). The language of § 203 expressly states that "[a]n action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States,” 9 U.S.C.A. § 203 (West 2004), and under § 205 an action removed from state court "shall be deemed to have been brought in the district court to which it is removed.” Id. § 205. These distinctions suggest a fundamental difference between removal of a case under 28 U.S.C. § 1441 et seq. and removal of a case under 9 U.S.C. § 205. Under §§ 1441-1446, the purpose is to change the forum in which the same case will be tried as would have been tried in the state court; whereas, under § 205, the purpose is to allow the removing party to assert in federal court the existence of an agreement to arbitrate under the Convention and compel such arbitration in lieu of the trial that would otherwise occur in the state court.
Thus, in a typical removal under § 1441 et seq., the nonappealability of a remand order is a reflection of the congressional policy to prevent delays of the trial on the merits by appeals over the validity of the remand order. But removal under § 205 raises the issue of whether there should be a trial on the merits at all; and the immediate appeals process authorized under 9 U.S.C. § 16 reflects the strong congressional policy of giving preference to arbitration over litigation as to agreements covered by the Convention. It seems that Congress intended to treat removals under the Convention differently and more leniently than removals under the general removal statutes. There may be an argument that the language of the Convention should control, rather than § 1447(d), when dealing with an agreement to arbitrate under the Convention. However, no case purports to resolve this apparent conflict between 28 U.S.C. § 1447(d) and 9 U.S.C. § 16; so I do not conclude here that the remand order itself is reviewable under § 16.
. The situation here is analogous to the resub-stitution order we found separable in Mitchell v. Carlson,
. This Catch-22 problem cries out for immediate remedy from the Supreme Court in this case and, ultimately, from Congress for all comparable cases that are sure to follow. It seems entirely absurd — in light of the Supreme Court’s and Congress’s extremely clear
. This Court has previously decided that district court decisions that favor or accommodate arbitration, such as orders compelling arbitration and grants of stays of legal proceedings pending arbitration, are not appeal-able under the Cohen v. Beneficial Industrial Loan Corp.,
. This is analogous to the situation presented in Moses H. Cone Memorial Hоspital v. Mercury Construction Corp.,
. While this Court decided National Iranian Oil v. Ashland Oil, Inc.,
In our cases following Gulfstream, we have denied § 1292(a)(1) review of district court decisions both denying and granting stays of litigation, but only where either the arbitration question was still actively pending in the district court or where the arbitration question had already been decided in favor of arbitration. See Adams v. Georgia Gulf Corp.,
Here, the district court has already clearly decided the arbitrability question in the negative against Appellants. Without immediate aрpellate review of the denial to compel arbitration and associated denial of stay of proceedings, Appellants face the serious consequence of being forced to litigate a dispute Dahiya already agreed to have submitted to arbitration. See City of Meridian, Miss. v. Algernon Blair, Inc., 721 F.2d 525, 529 (5th Cir.1983) (noting how an injunction against arbitration causes irreparable harm due to the expense of litigation). The situation is also potentially irreparable because the state court on remand may be collaterally estopped from reviewing the validity of Dahiya's agreement to arbitrate.
. The proarbitration viewpoint of Congress, as it pertains to the appellate process, could not be clearer. The purpose of § 16, as indicated by its legislative history, is to provide for interlocutory appeals when a trial court rejects the contention that a dispute is arbitra-ble under an agreement of the parties and instead requires the parties to litigate. H.R.Rep. No. 100-889, at 36-37 (1988), reprinted in 1988 U.S.C.C.A.N. 5982, 5996-97 (discussing then-numbered § 15 of Title 9). In direct contrast, interlocutory appeals are specifically prohibited when the triаl court finds that the parties have agreed to arbitrate the dispute. Id. at 37 (same).
. However, § 16(b) provides that nonfinal orders that grant or favorably treat arbitration under the FAA or the Convention are not directly appealable except as provided by the certification process in § 1292(b). See Cargill Ferrous Int’l v. SEA PHOENIX MV,
. The Supreme Court and the Fifth Circuit have explicitly declared "foreign arbitration clauses are but a subset of foreign forum selection clauses in generah” Haynsworth v. The Corporation,
. The Supreme Court has enforced every forum selection clause in an international contract that has come before it. See Vimar Serguros y Reaseguros, S.A. v. M/V SKY REEFER,
. Lim v. Offshore Specialty Fabricators, Inc., No. Civ.A. 02-2126,
. The Supreme Court affirmed its decision regarding the FAA’s preemption of state law in Mastrobuono v. Shearson Lehman Hutton, Inc.,
. See also Saturn Distrib. Corp. v. Paramount Saturn, Ltd.,
. Where there is a conflict between a treaty and the provisions of a state constitution or of a state statute, the treaty will control. Zschernig v. Miller,
. In its October 11, 2002, Order and Reasons, the district court stated: "Dahiya signed an employment contract before starting work on the EAGLE AUSTIN.” Dahiya’s deposi- ' tion testimony also indicates that he understood the deed document he signed to govern his employment aboard the EAGLE AUSTIN and that Neptune was his employer.
. I do not pursue a discussion of Dahiya’s remaining defense to arbitration, that nonsig-natories of an agreement cannot compel arbitration. Suffice to say, this defense fails entirely as to Neptune, see Sphere Drake Insurance PLC v. Marine Towing, Inc.,
.Generally, whenever the scope of an arbitration clause is in question, courts are to construe the clause in favor of arbitration. See Mitsubishi,