*3 CLIFTON, Circuit Judges. 9.1 In case of the dispute between the Licensor and the Licensee on the issues Opinion by Judge WALLACE; Dissent provided by present Agreement by Judge CLIFTON. the Parties shall every take effort for by their settlement negotiations. OPINION 9.2 case of failure to settle the men- WALLACE, Senior Circuit Judge: tioned disputes by negotiations means of Appellants Polimaster Ltd. and Na & Se they should be settled means of arbi- (Na (collec- Trading Company, Se) Ltd. & tration at the defendant’s side. Polimaster) tively, appeal from the district parties agree The that “defendant’s side” court’s confirmation of an arbitration site,” means is, “defendant’s the geo- award against them and in favor appel- graphical location of the prin- defendant’s (RAE). lee RAE Systems, Inc. They also cipal place of business. Buy/Sell The appeal from the district subsequent court’s Agreement also contains an arbitration granting pre- order and post-judgment in- clause, states, “7.1 The terest on the Parties shall arbitration award. We have exert the best jurisdiction efforts to pursuant up any settle § 28 U.S.C. disputes by negotiations, § and means of 16(a)(1)(D), 9 U.S.C. and we reverse case of failure to reach an agreement remand.
disputes shall be settled arbitration at the defendant’s site.” I.
Appellant Polimaster Ltd. is a limited Disputes arose in the course of perform- liability company Belarus, based ing en- agreements. In May Poli- gaged in design and manufacture of master filed an action RAE in the radiation monitoring Appel- instruments. United States District Court lant Na & Se is a corporation based in Northern District of California. After the Cyprus, engaged in intellectual property district court denied Polimaster’s request licensing. In January for a preliminary injunction, Ltd. and Na & Se entered into a contrac- negotiated to submit Polimaster’s claims to tual relationship RAE, with (that Delaware arbitration in is, California defendant corporation with principal place “site,” of busi- RAE’s as directed in agree- ness in ments). California. signed two In May Polimaster and agreements, the “Nonexclusive License for RAE commenced arbitration by joint Proprietary (License Information Usage” “JAMS,” letter to provider (since “JAMS, be “notions of fair- would renamed organization ness, economy efficiency” par- judicial Experts”). Although Resolution arbitration, “[p]rosecut[e] Poli- a claim affirmative jointly de- ties submitted simultaneously reservation: following fenses one venue while master made prosecuting counterclaims almost identical position that no coun- It is Polimaster’s [ven- to the affirmative defenses another be filed this matter will terclaims reasoned, Instead, he RAE’s “coun- ue].” requirement agree- on the based in the same terclaims” should “heard be filed that all such claims ment ar- properly original venue as situated such party against whom location *4 [by against bitration claims Polimaster brought. Because Polimaster claims are RAE].” Belarus, in Polimaster asserts is located against all such claims it shall be
that ultimately The arbitrator California brought in that location. adjudicated both Polimaster’s claims and The RAE’s “counterclaims.” arbitrator is- 2006, July In Polimaster submitted its 2007, July an Interim Award in which sued arbitration, setting forth demand rejected all of Polimaster’s claims and RAE breach of contract against claims damages to RAE on its awarded successful and Agreement both the License the under counterclaim, $2,412,432. amount misappropriation of Buy/Sell Agreement, By Septem- a Final Arbitral Award dated secrets, and unfair competition. trade 2007, 20, ber the arbitrator confirmed the answer August RAE submitted its findings and Interim arbitration, conclusions Polimaster’s demand for RAE, Award further awarded costs to which RAE forth not its affirma- set as prevailing party, in the amount of and responses tive defenses to Polimas- $46,213.15. allegations, but also RAE’s own ter’s Polimaster, against claims called Thereafter, sought RAE confirmation of RAE several “counterclaims.” asserted award in the United States tort, in- sounding claims contract and District Court for Northern District of eco- cluding prospective interference with Polimaster moved to California. vacate nomic mis- advantage, negligent fraud award, arguing proce- that the arbitral representation. par- dure was not accordance with ties’ that arbitrator asked the arbitrator to dis-
Polimaster
his powers by allowing
exceeded
RAE to
“counterclaims,”
RAE’s
arguing
miss
that
own
assert “counterclaims”
RAE’s
site
any
claims
RAE
rather
than at
“defen-
California
not
arbitrated at RAE’s site in
could
be
required by
agree-
dant’s
as
[site]”
California,
agree-
because the arbitration
The
confirmed
ment.
district court
required
they
brought
ment
RAE,
appeal
award to
and this
followed.
[site],”
is, at
“defendant’s
Polimaster’s
refused to dismiss
site.
arbitrator
II.
counterclaims,
reasoning
RAE’s
specify
parties agree
not
counter-
contract did
where
per-
governed by
To fill the
and award are
brought.
claims should be
applied
Recognition
Convention on the
and En-
gap,
ceived
he
rules
(the
counterclaims,
Foreign
compulsory
forcement
Arbitral Awards
regarding
10, 1958,
Convention),
21
Rules of
Proce- New York
June
defined
Federal
Civil
dure,
Procedure, U.S.T. 2517.
must confirm an arbitra-
California Rules of Civil
We
York
falling
arbitrator decided tion award
under
New
and JAMS rules. The
award,
unless we determine that
Convention
“one
Polimaster has the burden of
or
grounds
for refusal
deferral of
showing
of a
the existence
New York Con
recognition or enforcement of the award
Ministry
vention defense.
of Def. of
specified in the
said Convention.”
Gould, Inc.,
[sic]
Republic
Islamic
Iran v.
207;
Mgmt.
(9th Cir.1992).
§
see also
&
U.S.C.
Technical
F.2d
Polimas
S.A v.
Consultants
Parsons-Jurden
Int’l
ter’s
burden
substantial because the
(9th Cir.1987) (Par
Corp.,
We de novo whether parties’ agreed procedures, arbitral party established a defense enforcement we begin must of an arbitration award under the New agreement. See Ency York Convention. China Nat’l clopaedia Metal Encyclopae Universalis S.A. v. Britannica, Inc., Prods. Import/Export Apex 85, (2d Co. v. Digital, dia 403 F.3d 91 Inc., (9th 796, Cir.2004). 379 Cir.2005); F.3d 799 As v. Trading Coast Co. Pac. Mo (9th seeking Co., 1195, to avoid enforcement of lasses 681 F.2d 1198 Cir.
837
at the
all claims
be asserted
Wit
should
1982);
Howsam v. Dean
generally
cf.
84,
Inc.,
79,
provided
123
a clear
537 U.S.
site. This
Reynolds,
defendant’s
ter
(2002) (holding
588,
491
154 L.Ed.2d
forum for arbitration.
designation
S.Ct.
arbitrability de
that,
of an
in the context
Corp. v.
Nat’l
Cf., e.g., Bauhinia
termination,
contract
reviews the
the court
Imp.
Corp.,
&
Equip.
Exp.
Mach. &
Inc.,
Autoliv,
novo); Simula,
Inc. v.
de
Cir.1987)
(9th
247,
(ambiguous
F.2d
Cir.1999) (also
(9th
in con
F.3d
require
provision).
forum selection
determination,
in
arbitrability
text of
at the
site
ment of arbitration
defendant’s
of the relevant contractual
terpretation
clause, in
effectively a forum selection
review).
subject to de novo
was
provision
parties agreed to arbitrate
which the
place
principal
location
a defendant’s
A.
pre
This choice
forum is
of business.
case,
agree
the arbitration
In this
See
v. Al
sumptively enforceable.
Scherk
be
disputes
“should
provided
ment
Co.,
506, 519, 94
417 U.S.
berto-Culver
the de
of arbitration at
means
settled
(1974);
2449,
For reasons agreement question provides arbitration in conclude arbitration clause for affirmative required requests that all that, that “the mentioned event relief, counter- styled as claims or whether by “negotia- disputes” cannot be settled claims, at the be arbitrated defendant’s tions[,] by means of they should settled be required The arbitration site. Be- [site].” the defendant’s “dispute” at “the any be arbitrated “disputes” plural, is but cause the word “dispute” The term [site].” defendant’s and “side [site]” words “defendant” claims and counter- encompasses both singular, “[t]he dissent reasons Moreover, party a “defen- is claims. could be there parties anticipated dispute to where another any as dant” yet ‘defen- multiple disagreements, other form damages seeks some to location.” site’ refers one dant’s Therefore, him. Polimas- relief of the arbitra- The dissent’s construction of as to “defendant” clearly was ter clause, however, simply is not reason- tion “dispute” RAE’s “counterclaims.” used in sec- “disputes” The term able. have in claims should not those embodied Agreement refers back tion 9.2 RAE’s site in arbitrated at California. been subject category disputes made 1. clause, as defined section pro- 9.1 Section Agreement. 9.1 of agreement was The arbitration that, dispute [sic] the case of “the contemplated vides ambiguous. The between the Licensee and the Licensor on proceeding that has already commenced.” the issue provided by dissent, the present The below, like the arbitrator also Agreement” points were to make “ev- rules pertaining to counterclaims ery effort for the Federal by Procedure, their settlement Rules of means of Civil negotiations.” California Procedure, Rules contemplates 9.2 of Civil Section that, and the rules of the the event that “the arbitration forum mentioned agreed upon (JAMS). by the parties disputes” by cannot be settled negotia- argues dissent tions, they be should “settled means of case ambiguous is because “[t]he the defendant’s [site].” prosecution of counterclaims in Thus, the same plural “disputes,” term as used proceeding broadly recognized in inter- Agreement, section 9.2 of merely national arbitration.” The dissent then a reference back to the covered disputes points general rules and 9.1, set forth in section i.e. disputes “on the guidelines from several international arbi- issues provided present Agree- provider tration organizations that typical- ment.” context, When viewed in plural ly apply would to the extent those rules term “disputes,” cannot be reasonably said are consistent with a given agreement to to mean of multiple consolidation claims See, e.g., arbitrate. International Cham- into a single arbitration because that ber (ICC) of Commerce Rules of Arbitra- would to the specific more 5; tion art. London Court of International forum-selection clause contained in section 2.1(b); Arbitration Rules art. United Na- Agreement. 9.2 of the tions Commission on International Trade (UNCITRAL) Law Arbitration Rules art. 2. The arbitrator opined that the arbitra- Nevertheless, although joinder tion clause was indeterminate because it counterclaims into a pending proceeding is failed provide expressly for the treat- widely contemplated by various rules of ment counterclaims. The like- dissent *7 procedure, parties the simply did not in- wise concludes that the arbitration clause corporate these rules into their contract. faulty is for failure to contemplate counter- Instead, once the assumption that coun- claims. But the agreement that neither joined terclaims will be into a pending expressly included nor excluded counter- proceeding recognized is as what it is— claims does not render it indeterminate. merely assumption is clear that the —it There is no why reason parties’ clause adequate was to express provide had to for the treat- their put intent. To point the differently, ment of counterclaims. To conclude that clause adequate was provide to the arbitration clause is ambiguous on this for separate arbitrations at the defendant’s up basis sets a rigged game: criticizing the See, site. e.g. Gary Born, B. International failure to provide for the treatment of Commercial Arbitration in the United counterclaims presumes that such a clause (1994). States 6 is There no reason to a necessary, indispensable, or essential require the parties to include contractual component of an to arbitrate. language specifically defeating or negating But there is no reason that this must be joinder of claims. The dissent’s view- so. is, point effect, based on the dissent’s that, dissent argues “it not a assumption that counterclaims should be novel or practice obscure to all joined resolve in a pending proceeding. We be- claims, counterclaims, including in single a lieve it would be to interpret circular
839 term, however, § is used 13.90[2]. reference agreement therefore latter when it is clear sense incorpo- not parties did rules that the to court, that the from the relevant context are in- and which into their contract rate tribunal, arbitrator, parties have or to parties’ agreement consistent with formally designated particular one side See, & Emmanuel Gaillard e.g., arbitrate. id. In this as the “defendant.” See Fouchard, Gaillard, Eds., Savage, John case, context and structure of the International Commercial on Goldman clearly indicate (1999) out (pointing 632-53 Arbitration the “defendant” parties understood of the forum rules against a as- party as whom other of international to conduct apply need out Li- “dispute” arising serts a of the arbitration). Buy/Sell Agree- cense Agreement or Indeed, to, that we look the extent nothing in these Absolutely ment. proce domestic rules of incorporate, our agreements suggests construing the clause at dure understood term “defendant” as hand, sup those rules tend we believe designation party formal limited interpretation. our Counterclaims port It on the es- initially defensive. is well relief’ and are “affirmative claims for that a tablished counterclaim results Coqui Daniel R. in nature.” “offensive shifting party so al., eds., lette, Federal Practice et Moore’s counterclaiming plaintiff becomes the on (3d 2010); also v. § Ed. see FDIC 13.90[1] plain- and the original counterclaim 317, F.S.S.S., n. 11 F.Supp. 322 829 tiff becomes defendant. See Roberts (“Counterclaims 1993) (D are sepa .Alaska Schrader, 522, Min. 95 F.2d & Mill. plaintiffs independent rate claims (9th Cir.1938) (explaining 524 Clubs, claim.”); Concept underlying re effect, suit, [is], in a new “counterclaim 1993). (D.Utah 581, Inc., 154 B.R. 586 n. plaintiff which Schrader was Rule of Procedure Under Federal Civil defendant”). Accordingly, Smith was against a coun is the “defendant” there no dispute can be Polimaster Practice terclaim. Moore’s Federal See RAE’s became the “defendant” 13.90[2][a]; Mgmt. also Rainbow § see relief, against claims for affirmative Haw., L.P., Group v. Atlantis Submarines regardless of RAE those styled how (D.Haw.1994); F.R.D. Earle clear claims. Under U.S., Ltd., v. T.I. Jorgenson Co. M. (E.D.Pa.1991) (“Any party F.R.D. was entitled have the claims *8 claim, an asserting original whether a it home forum. arbitrated claim, counterclaim, or third- cross-claim acknowledge that We claim, party an opposing becomes party in this one. case is unusual (internal and quo citations party sued” not for provide The arbitration clause does omitted)). tation marks a law of procedural choice of or a choice (describ- points out that term The dissent at generally rules. Born See could have different ing present “defendant” of law issues the several choice arbitrations); on context. For meaning Alan Red- depending international instance, Hunter, is litigation, “defendant” fern Law and Practice & Martin Arbitration, as a “shorthand” International Commercial sometimes used (2002). defending The arbitration clause original party 163-168 “distinguish the provide the number of also initially on offen- does from appoint- at arbitrators or method their Practice sive.” See Moore’s Federal Cf., e.g., ICC Standard Arbitration ment. economic benefits of on Clause, available at www.iccarbitration. agreeing relied in (last 2010) (recom 13, org July visited arbitration.” mending disputes clause that states: “[a]ll disagree We with proposition arising out of or in with connection our interpretation of the arbitration clause finally present contract shall be settled should be controlled con- efficiency under Rules of Arbitration of the independent cerns. There are two reasons appoint one or [ICC] more arbitrators why impose we cannot upon the arbitration Rules”); ed in accordance with the said interpretation clause an in the interests of Association, American Arbitration Draft it to an confirming imputed effi- notion of Dispute ing Resolution A Prac Clauses: ciency. now We discuss rea- those two 1, 2007, Guide at (Sept. tical 4-5 available sons. 2010) 13, www.adr.org, July last visited (setting subjects general forth checklist ly appropriate for stipulation in arbitration clause); id. at (providing 8-9 mod several First, policy arbi favoring clauses). case, el arbitration In this policy tration “is at bottom a guaranteeing provides only for a choice forum: the enforcement of private contractual ar defendants’ That site. choice [Polimaster] rangements.” Corp. Mitsubishi Motors v.
is entitled to enforcement. Inc.,
Soler Chrysler-Plymouth,
U.S.
B.
614, 625,
3346,
105 S.Ct.
L.Ed.2d
(1985).
must
We
enforce
Admittedly,
interpreted
we have
agreement according
terms,
to its
if
even
parties’ arbitration
permit
clause so as to
result
inefficient. See Dean Witter
an inefficient
parallel
result:
arbitrations
Reynolds, Inc. Byrd,
470 U.S.
217-
in distant fora regarding similar and/or
(1985)
105 S.Ct.
841 delegated to the arbitrator. The Mercury Corp., v. Constr. decisions Hosp. Mem’l 927, 1, 20, 74 L.Ed.2d the parties’ 103 arbitrator could override 460 U.S. S.Ct. (1983) general where it (compelling express agreement pro 765 arbitration in favor of Indeed, proceedings). in bifurcated would result cedural rules. adherence to the Thus, “efficiency” adopted by position parties’ agreed-upon procedures regu is inconsis- enforced, the arbitrator and dissent larly such as where to relevant true of the “federal arbitration, tent with the basis of forum the choice of see favoring arbitration.” policy Bear, Co., Bennett, v. & Inc. 938 Stearns (2d 31, Cir.1991); F.2d 32 National Irani vein, RAE In a similar asserts Inc., Oil, v. an Oil Co. Ashland 817 F.2d authority arbitral that we should “construe 326, (5th Cir.1987), appointment or the 332 broadly comport with the enforcement- to arbitrators, see of Universal Reinsurance thrust of the Convention and facilitating Co., Corp. v. Allstate Insurance 16 F.3d favoring See policy arbitration.” Par (7th 125, Cir.1993); Avis A 128 Rent Car sons-Jurden, F.2d at 1534. While we 820 Union, System, Garage Employees Inc. v. recognize that the New York Convention (2d Cir.1986). 22, 24 791 F.2d enforceability promote was enacted to agreements, of international arbitration 2. Convention, policy like federal Second, the
favoring
generally,
policy favoring
favors
arbi
arbitration more
“applies
special
of arbitration clauses accord
tration
enforcement
force
contracting parties.
field of
commerce.”
ing to the intent
international
Mitsubi
of
Motors,
631, 105
“recognizes
The New York Convention
shi
473 U.S. at
S.Ct. 3346.
parties
fashioning
central
recognized
importance
role
has
Court
provides
procedure,
sanc
of forum-selection clauses to international
agreed
for
to adhere to the
tions
failure
“agreeing
trade:
in advance on a forum
44;
also
Born
see
Rhone
procedures.”
acceptable
parties
to both
is an indispens
Compagnia Francese As
Mediterranee
di
trade,
able
in international
com
element
Lauro,
v.
E Riassicurazoni
Bremen,
sicurazioni
merce,
contracting,”
407
M/S
Cir.1983).
(3d
50,
F.2d
13-14,
1907,
U.S. at
that a
S.Ct.
indispensable
choice
forum is “an almost
therefore,
cannot,
We
“over
precondition to
of the orderli
achievement
procedures” in
agreed-upon
look
arbitral
any
predictability
ness and
essential
favor of
of an arbitration
the enforcement
transaction,”
international
business
Universalis, 403
Encyclopaedia
award.
Scherk,
rum selection personal suit a tration dissimilar to what we of the efficiency. view virtue of National, consider here. In China provision provided
arbitration
op-
three
C.
tions for forum
by
to be selected
the claim-
ant.
provision
This
did not
constitute
China
National
is not
to our
mandatory
Here,
forum selection clause.
holding in
present
case.
word
dispute
insufficient
resolve the
term was
equally
here is
arbitration clause
that “the
the contéxt
the arbitration
light
disposi-
to the
respect
‘indeterminate’
being
than
involved. Rather
agreement
question
precise
of the
interpretive
tive
contradictory
holding,
to our
we view Chi-
”
meaning of ‘defendant.’
National’s discussion of “claimant”
na
view, however,
focus-
the dissent
In our
In
with our conclusion.
Chi-
be consistent
Na-
of China
inapposite aspect
es on
National,
case,
two
na
had
Apex argued that CIETAC
tional.
extension,
By
to be
purported
claimants.
clause
arbitration
disregarded
case, there
claimants and
in this
are two
arbitra-
separate, parallel
by permitting
clause at
two defendants.
arbitration
therefore, had to
Apex,
proceed.
tions
at the “defen-
required
issue
establish
light
mandatory
[site].”
dant’s
only
permitted proceedings
agreement
clause,
ambigu-
is no
forum selection
there
venues.”
multiple
“and not in
forum
one
Na-
ity. This case
distinct from China
described,
799. As
have
F.3d at
we
tional.
gave
China National
one of three
option
select
claimant
D.
Shenzhen,
Shanghai. Be-
Beijing,
fora:
provided
cause the
We hold
Polimaster has es
op-
claimant’s
of three fora at
the choice
York
a defense under the New
tablished
tion, “[njothing
parties’ purchase
Under the New York Con
Convention.
designated
specifically
either
orders
vention,
may
of an
we
refuse enforcement
arbitral
appropriate
as the
Shanghai
procedures
if it is the result of
award
rule of decision
or articulated a
forum
parties’ agreement.
to the
Apex
forum.
determining
appropriate
Here,
parties agreed to an arbitration
in its
that the arbi-
claim
mistaken
[was]
to be arbi
requires disputes
sufficiently specific
clause was
tration
located;
trated where
defendant
determine
fo-
the arbitral
could
CIETAC
should be
to the contractu
party
each
held
to its arbitral
rum without
reference
of dis
requiring arbitration
al
Further,
deter-
at 800.
we
rules.”
Id.
the party
in the location of
putes
use of
term “claimant”
mined that the
sought.
procedures
relief is
whom
to the
proceedings
limit arbitration
not
did
in the arbitration of “counterclaims”
used
Instead, “the clause
forum.
first-chosen
agree
with the
“not
accordance
were
it
leaves
define ‘Claimant’ but
does not
in con
The district court erred
ment.”
(i.e.
either
a variable term
open as
for RAE.
the arbitration award
firming
claimant).”
Thus,
at 801.
Id.
could be
designate the
“claimant” did not
the term
IV.
the fact
light
forum of arbitration
25, 2008,
court
February
the district
“claimant” to
On
clause allowed each
that the
confirming
an order
issued
We stated
the forum arbitration.
elect
Poli-
award,
judgment.
did
issue
pro-
but
arbitration clause—because
that the
*12
here,
ferently
majority
that order is
than
appeal
master’s
discussed
the
has read it
5, 2008, RAE
in Part III. On June
filed a
and I
agree
tend to
with the arbitrator’s
court,
that,
asking
pursuant
motion
our
specific interpretation, as well. The two
60(a),
Federal
Procedure
insist,
to
Rules of Civil
judges
up
making
majority
the
district court
allowed to make cor-
nonetheless,
language
have
can
to the
We denied that
rections
order.
but one
in-
interpretation,
reasonable
an
motion,
request
following
but
from the
terpretation
by
different from that reached
fix
court for
to
“an
district
leave
omission
light
In
arbitrator.
of the
February
an error” in
and
arbitrator,
views of the neutral
the district
Order,
RAE
request
and a
from
that we
court,
me,
majority’s
and
conclusion
reconsider our
denial of the
earlier
Rule
that the language
unambiguous
flies in
60(a) motion,
granted
we
RAE’s motion for
headwind,
strong
face of a
and the
reconsideration and “motion
limited re-
reasoning
by
sup-
the majority
offered
60(a)
mand” to allow RAE
file a Rule
port
unpersuasive.
its conclusion is
motion
district court to correct the cleri-
Second, as a result of
its refusal
by
cal errors
the district
identified
court.
recognize
ambiguity
of the contractual
court,
district
RAE then filed its
language,
majority opinion
usurps
60(a) motion;
23, 2009,
Rule
January
on
authority
arbitrator’s
am
interpret an
district court granted
the motion and
term,
biguous contractual
conflict
judgment,
filed
amended order and a
our decision in China
Metal
National
including
this time
in its relief to RAE pre-
Import/Export
Products
Apex Digi
Co. v.
post-judgment
interest.
tal,
(9th
Inc.,
Cir.2004).
We reach the issue of whether how, The problem posed by this case is the district court respect, erred this after an arbitration between because we hold that the district court’s initiated, has been to deal with a claim judgment must be vacated the reasons back respondent against origi- set forth Part III opinion. of this We court, nal claimant. In federal we call this therefore remand for further proceedings type of claim a “counterclaim.” See Fed. consistent with opinion. R.Civ.P. 13. The advocate differ- ent problem upon solutions to the based
REVERSED AND REMANDED. interpretations
different
of the arbitration
CLIFTON,
Judge, dissenting:
Circuit
term in the contract: “In case of failure to
settle the
disputes by
mentioned
means
respectfully
I
I
dissent.
believe that the
negotiations they
should be settled
majority opinion
gone astray
has
in two
means of arbitration at the defendant’s
ways.
side [site].”
First, it
recognize
fails to
that the rele-
language
vant
Systems
RAE
maintains that the word
ambiguous.
The arbitrator
“defendant”
respon-
refers
the initial
dent,
district judge
against
both concluded that
first
is ambiguous,
agree
and I
claim is brought,
any
such that
subsequent
with them. The
also
brought
arbitrator
concluded counterclaim can be
in the same
that the language
interpreted
is better
proceeding,
dif-
even
though
necessarily a “defendant.”
him” is
site of
at the
not located
proceeding is
none of the sources
But
Maj. op. at 837.
Polimaster, on
of the counterclaim.
target
*13
838-39,
as a
cites, at
establish
majority
the
the
hand,
that both
contends
other
the term “de-
terminology that
matter of
counter-respon-
and the
respondent
initial
majority
only as the
must
used
be
fendant”
the mean-
within
“defendant[s]”
are
dent
cited
At
least
two
supposes.1
term,
requiring
ing of
contractual
con-
opposite
actually support
sources
pursue
initiate
respondent
original
“de-
the term
might
one
use
clusion:
the site
proceeding
separate
a
arbitral
arti-
fendant,”
with the definite
especially
pur-
in order to
counter-respondent
adjective,
preceding
a
and without
cle
a counterclaim.
sue
defending party
original
distinguish
Polimas-
accepts
opinion
majority
The
the offensive.
initially on
party
from the
multiple-arbitra-
multiple-defendant,
ter’s
Practice,
Federal
example, Moore’s
For
one.
It
right
as
interpretation
tion
relies, refers to
majority
upon which
is
interpretation
this
further decides
way.
See
precisely
“the defendant”
clearly correct
so
al., eds.,
Fed-
Moore’s
Coquilette et
Daniel
majority
The
ambiguous.
is not
2010) (es-
(3d ed.
§ 13.90[2]
eral Practice
however,
satisfactorily explain,
does
following
preced-
n. 9 and
pecially the text
interpretation is
RAE’s alternative
why
17)
and “the
(using
plaintiff’
“the
ing n.
reading of the arbi-
a
not also reasonable
sides
designate substantive
defendant”
ambiguous
contract is
clause. “[A]
tration
“de-
to the term
in contrast
litigation,
its terms
could find
people
if reasonable
side
refers to
either
fending party,”
interpreta-
one
more than
susceptible to
an
against
affirmative
whenever
defends
1077,
LLC,
F.3d
552
v. AOL
tion.” Doe 1
claim).2
terminol-
under this
plaintiff,
The
Cir.2009) (internal
(9th
quotation
1081
a
later become
“counterclaim
might
ogy,
omitted).
clause is
The arbitration
marks
as
or a “crossclaim defendant”
defendant”
than one reasonable
more
susceptible to
de-
well,
designations,
such
but
additional
the arbitrator
interpretation, as
“defendant,”
including the word
spite
language
The
concluded.
court
district
“the
into
would not transform
recognized
should be
ambiguous and
sense—a
contemplated
in the
defendant”
such.
liti-
side
particular
a
shorthand
gation.
reading is
that its
majority argues
can be
any answer
on the no-
one based
To the extent
reasonable
language used
against
from
gleaned
who
any party
defends
tion that
cuts
I
think the
party seeks
another
dispute where
“any
in-
majority opinion’s
slightly against
of relief
other
form
damages or some
U.S.,
dant”);
Jorgenson Co.
T.I.
v.
Earle M.
See,
v. At
Mgmt. Group, Ltd.
e.g.,
Rainbow
(deal-
472,
(E.D.Pa.1991)
Haw., L.P.,
Ltd.,
158 F.R.D.
475
133 F.R.D.
Submarines
lantis
Clubs,
(D.Haw.1994) (holding
"[c]o-parties
"oppos-
Concept
with
ing,
re
like In
[emphasis added]
opposing
issue,
become
endorsing any theo-
without
ing party”
13(a) after
meaning of Fed.R.Civ.P.
within the
or must
"defendant” can
ry
of how
term
cross-claim
party pleads an initial
one such
used).
be
other,”
discussion
with no
party”
deemed
"opposing
must
whether
F.S.S.S.,
F.Supp.
also FDIC
2. See
Clubs, Inc.,
"defendant”);
Concept
In re
(also
(D.Alaska 1993)
by the
cited
322 n. 11
(distinguishing
between
n. 4
B.R.
brought
(describing a counterclaim
majority)
recoupment,
and a setoff or
counterclaim
plaintiff”).
against "the
by "Defendants!]”
a counterclaim
of whether
no
mention
“defen-
opposes it a
party that
makes
situation,
carefully
appeared
at the sen-
the entire
as it
terpretation. Look
elude
parties.”).
“In case of failure to
question:
tence
disputes by means of
settle the mentioned
addition,
recognized
the arbitrator
they
negotiations
should be settled
practice
is not a
that it
novel or obscure
means of
at the defendant’s
claims,
all
including
to resolve
counter-
“disputes”
but
plural,
side.” The word
claims, in
single
proceeding that has
(or
words “defendant”
“side”
already commenced. The arbitrator here
“site”)
anticipat-
singular.
*14
specifically referenced the treatment of
disagree-
multiple
ed that there could be
Rules of
counterclaims
Federal
Civ-
ments, yet “the defendant’s site” refers to
Procedure,
il
Rules of
California
Civil
only
The
clause
one location.
Procedure,
of
and the rules
say
does not
“defendants’
Of
sites.”
agreed
parties,
upon by
forum
JAMS.
course, I need not be as sure of this inter-
prosecution
The
of counterclaims in the
pretation
majority
be of
as
must
its
proceeding
broadly recognized
same
is
own,
I do not
because
contend that
international arbitration.
Prominent
in-
reading
this
is reasonable. To establish
organizations
ternational arbitration
ad-
that
language
ambiguous,
is
it
is
explicitly in
dress counterclaims
their
enough to demonstrate that a reasonable
See, e.g.,
rules.
International Chamber of
interpretation
majority’s
other than the
5;
Commerce Rules of Arbitration art.
exists,
language
and the
of the arbitration London Court of International Arbitration
adequate
pur-
clause is more than
that
2.1(b);
Rules art.
German Institute of Ar-
pose.
10;
§
bitration Rules
United Nations
on
Commission
International Trade Law
reasoning provided .by
The
arbitra-
Arbitration Rules art. 19.
support
tor to
his conclusion that the exist-
ing
encompass
Considering
arbitration should
counter-
the context
which the
logical.
claims as well was
parties
The arbitrator
made their agreement does not
rejected
interpretation
by improperly
embraced
assume any conclusion or
majority
impute
arbitration of
coun- wrongly
any particular motivation
—that
terclaim
separate
parties.
must be conducted in a
merely recognizes
to the
It
one
proceeding at
the counter-respondent’s
good
parties may
reason the
have intended
represent
site—because that would
an in-
agree
to something different from the
way
efficient
disputes.
to resolve
interpretation
Parties
of the arbitration clause that
contractually adopting
majority espouses:
arbitration as the
major-
because the
resolving disputes commonly
method for
ity’s interpretation ignores both the com-
do
efficiency.
logical
so to achieve
It
efficiency
is
to mon desire for
and the wide-
reason
that such
intend
spread
practice
do not
of litigating
(Sec-
inefficient results. See Restatement
counterclaims
proceeding.3
same
ond)
202(1) (1981) (“Words
§
context,
of Contracts
me,
Given this
not so
clear to
and other
interpreted
conduct
let
unambiguously
alone
clear from the
light
circumstances.”);
of all
clause,
cmt. b
id.
words
(“The circumstances for
in-
purpose
parties agreed
piecemeal
to require
litiga-
(indeed,
not,
point
We need
should
deter-
is that the
influence
these consider-
mining
ambiguous)
whether
contract is
seek
background
ations
to the
makes
parties subjectively
establish whether
reading
an alternate
of the arbitration clause
efficiency
concept
took
concerns or the
reasonable.
counterclaims into account.
relevant
The
end,
majority opinion
per-
reasoning
In the
offered
does not
tion.
why
majority
agree-
conclude
suasively explain
we should
demonstrate
piece-
they
unambiguously provided
did.
ment
nothing
meal arbitrations rests on
more
are, in
majority opinion’s arguments
majority’s
assumption
than the
own
for its
reality,
arguments
circular—the
interpretation
the arbitration clause
preferred reading of the arbitration
In the
is correct.
face of
conclu-
reading.
of that
assume
correctness
arbitrator,
court,
sions
the district
asserts,
example,
majority opinion
For
dissent,
thin
and this
that is much too
that “the
clause was ade-
support
majority’s
reed to
conclusion
pro-
their
...
quate
express
intent
unambiguous.
the relevant
arbitrations at the defen-
separate
vide for
agree
I
if the
dant’s site.”
2. The China
decision
National
at the sites
separate
intended
arbitrations
decision
National
Our
Metal
defen-
each defendant
counterclaim
*15
Apex Digi
Import/Export
Products
Co.
dant,
then
how
tal, Inc.,
(9th Cir.2004),
We held that
positions
argu-
“[b]oth
“the parties in China National adopted
able,
the face of an assertion that CIETAC rules in their
agree
claimants,
there can
ment,”
be two
the text of the
so the gap-filling application of
arbitration clause alone is indeterminate
those
by
rules
CIETAC “did not trump
and does not resolve the matter.”
specific
Id.
parties’
terms of
agree
parties’ disagreement
842;
in this
Maj. op.
ment.”
see China Na
case
tional,
over who is a
respon-
“defendant” —a
Because China National dealt procedural with an rules in may China National analogous contractual ambiguity, it con- have strengthened argument ap- trols our decision here requires us to plying those rules did not par- violate the 4. None of the contracts defined "de- not define "[did] 'Claimant' but [left] it fendant’s site" (i.e., open "defendant’s side.” The as a variable term either National, claimant).” National, controversial term in China "claim- could abe China ant,” similarly was undefined: the arbitration F.3d at 801. terms, “claim- tally about how contractual law was not a choice of agreement, ties’ “defendant,” respectively, result. should National’s ant” and necessary to China trump specific terms contracts them- interpreted not be when the did “CIETAC turning to by orders parties’ purchase parties’ disputes. not resolve the selves do arbitral clause because the rules its own judgment I conclude that Because dispute itself,” not resolve the did affirmed, I would on the merits should added), not (emphasis F.3d at 801 the district the issue of whether reach to fill a rules used the CIETAC because earlier scope of our court exceeded incorpo- clause were gap failure remand to correct limited into the contract. by rated reference affirm judgment. a I would enter entirely extrinsic Rules belatedly judg- entered district court’s and Federal and rules such as JAMS oversight Because the court’s was ment. applied Procedure Rules of Civil California all, any judgment at it its failure to enter case, automatically conflict do not in this empowered was to correct its mistake National agreement. with that entering judgment any that included re- presence gap clear that it is makes lief, in- including pre- post-judgment clause, specifica- not the in an arbitration terest, that could have been included filling gap, such a of default rules tion A judgment in the first instance. court is reference to makes an arbitrator’s allowed, under Federal Rule of Civil Pro- gapA appropriate. rules extrinsic —that 60(a), to effec- cedure to make corrections is, that “the dispute between to do.” “originally tuate what it intended clause alone” does text of Platters, Inc., F.2d Robi v. Five in this case as as much not resolve—exists (9th Cir.1990). Reference in China National. did I affirm. would appropriate rules was outside here, employed rules were though even parties. specified advance *17 attempts to majority opinion also Nation- case from China
differentiate this fact that the arbitra- by highlighting Yancy, al Jerry VALDIVIA, Alfred here, properly at issue once tion clause Welch, on their own behalf Hossie forum particular mandates a interpreted, per of the class of all and on behalf (“the side”), the clause in while defendant’s similarly situated, Plaintiffs-Ap sons a choice gave party one China National pellees, Maj. op. at cities. among three Chinese beside the That distinction is 842-43. SCHWARZENEGGER, Califor Arnold of meaning debated the point. nia, State Sacra Governor National because “claimant” California, mento State party got definition determined California, Defendants-Appellants. Shenzhen, and among Beijing, choose No. 08-15889. interpretive The winner of the Shanghai. city right to select debate received Appeals, States Court United of, ease, predetermined
instead Ninth Circuit. pre- would that the victorious forum 28, 2010. Sept. not disturb the But that detail does fer. Landon, of Alex Law Offices Alex Louis that underlies analysis parallel contractual Adams, Joseph Landon, F. Michael Mark are fundamen- Both cases the two cases.