Lead Opinion
The basis for this interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is the district court’s denial of a motion to compel arbitration of a contractual dispute among three insurers. We consider en banc whether the MeCarran-Ferguson Act
I
Louisiana Safety Association of Timber-men-Self Insurers Fund (LSAT) is, as its name implies, a self-insurance fund operating in Louisiana. It provides workers’ compensation insurance for its members. Certain Underwriters at Lloyd’s, London (the Underwriters) provided excess insurance to LSAT by reinsuring claims for occupational-injury occurrences that exceeded the amount of LSAT’s self-insurance retention. Each reinsurance agreement contained an arbitration provision.
Safety National Casualty Corporation (Safety National) also provides excess workers’ compensation coverage and alleges that in a loss portfolio transfer agreement, LSAT assigned its rights under the reinsurance agreements with the Underwriters to Safety National. The Underwriters refused to recognize the assignment, contending that LSAT’s obligations were strictly personal and therefore nonassignable.
Safety National sued the Underwriters in federal district court. The Underwriters filed an unopposed motion to stay proceedings and compel arbitration. The district court initially granted that motion.
The Underwriters commenced arbitration proceedings with Safety National and LSAT; however, the parties could not agree upon how arbitrators were to be selected. The Underwriters then filed a motion to lift the stay in order to join LSAT as a party in the district court and to compel arbitration to resolve how to compose the arbitration panel. In response, LSAT moved to intervene, lift the stay, and quash arbitration. LSAT asserted that the arbitration agreements were unenforceable under Louisiana law.
While those motions were pending, the Underwriters filed a separate action against Safety National and LSAT seeking recovery of unpaid premiums under the policies. The district court consolidated the two actions.
The district court ultimately reconsidered its initial decision and granted LSAT’s motion to quash arbitration. The district court concluded that although the Convention would otherwise require arbitration, a Louisiana statute
II
The Underwriters raise three issues: whether (1) the Convention is an “Act of Congress” within the meaning of the McCarran-Ferguson Act,
The starting point of our inquiry is the statutory and treaty texts.
The Louisiana statute at issue provides:
A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state ... shall contain any condition, stipulation, or agreement:
*719 (2) Depriving the courts of this state of the jurisdiction of action against the insurer.
C. Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract.10
Although it is not clear from this provision’s text that arbitration agreements are voided, Louisiana courts have held that such agreements are unenforceable because of this statute.
The Louisiana statute, as so interpreted, conflicts with the United States’s commitments under the Convention. The Convention states that each signatory nation “shall recognize an agreement in writing under which the parties undertake to submit to arbitration” their dispute “concerning a subject matter capable of settlement by arbitration.”
The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.13
This treaty is the subject of the Convention Act. That Act states that the Convention “shall be enforced in United States courts in accordance with this chapter.”
LSAT contends that the McCarran-Ferguson Act resolves this conflict in favor of the application of state law because the Louisiana statute regulates the business of insurance. The MeCarranFerguson Act provides that “Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.”
For the purposes of the McCarran-Ferguson Act, neither the Convention nor the Convention Act specifically relates to the business of insurance. Nor do the Underwriters challenge the district court’s conclusion that Louisiana Revised Statutes § 22:868, when applied to disputes arising under reinsurance agreements between insurers, regulates the business of insurance within the meaning of the McCarran-Ferguson Act.
Ill
LSAT contends that the Convention was not self-executing and could only have effect in the courts of this country when Congress passed enabling legislation. Accordingly, LSAT argues that the Convention’s enabling legislation is an “Act of Congress” within the meaning of the McCarran-Ferguson Act’s provision that “[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance .... ”
The Underwriters addressed whether the Convention is self-executing only in briefs to the panel and not in any depth, instead maintaining primarily that even if the Convention were not self-executing, once implemented, it remains a treaty and is not an “Act of Congress” within the meaning of the McCarran-Ferguson Act.
It is unclear to us whether the Convention is self-executing. The Supreme Court’s recent decision in Medellín v. Texas
Applying the reasoning of the Supreme Court in Medellin, we are to consider what the Convention says about its legal effect in domestic courts. The Convention expressly states that domestic courts “shall” compel arbitration when requested by a party to an international arbitration agreement.
Even if the Convention required legislation to implement some or all of its provisions in United States courts, that does not mean that Congress intended an “Act of Congress,” as that phrase is used in the McCarran-Ferguson Act, to encompass a non-self-executing treaty that has been implemented by congressional legislation. Implementing legislation that does not conflict with or override a treaty
To accept LSAT’s argument, we must conclude that when Congress used “Act of Congress” in the McCarran-Ferguson Act, it intended that phrase to exclude self-executing treaty provisions but to include treaty provisions that are implemented by federal legislation. This is untenable. The commonly understood meaning of an “Act of Congress” does not include a “treaty,” even if the treaty required implementing legislation. As noted above, LSAT concedes that if the provisions in the Convention directing courts to enforce international arbitration agreements were self-executing, then the McCarran-Ferguson Act would have no preemptive effect because self-executing treaties are not an “Act of Congress.” Yet, there is no apparent reason — and LSAT has provided no rationale — why Congress would have chosen to distinguish in the McCarran-Ferguson Act between treaty provisions that are self-executing and those that are not self-executing but have been implemented.
Our conclusion that Congress did not intend the term “Act of Congress,” as used in tibie McCarran-Ferguson Act, to reach a treaty such as the Convention is buttressed by the terms of the Convention Act. When Congress amended the FAA in 1970 to include provisions that dealt with the Convention, it provided in 9 U.S.C. § 203, that “[a]n action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States.” This is a direct indication that Congress thought that for jurisdictional purposes, an action falling under the Convention arose not only under the laws of the United States but also under treaties of the United States. Accordingly, even in the very act of Congress that was arguably necessary to implement the Convention in domestic courts, Congress recognized that jurisdiction over actions to enforce rights under the Convention did not arise solely under an “Act of Congress.”
Equally important in the present case, it is a treaty (the Convention), not an act of Congress (the Convention Act), that we construe to supersede Louisiana law.
The Convention Act directs us to the treaty it implemented, and when we “construe” the Convention, we are faced with the possibility of “superseding” the Louisiana law. The Convention requires that each signatory nation “shall recognize an agreement in writing under which the parties undertake to submit to arbitration” their dispute “concerning a subject matter capable of settlement by arbitration,”
IV
The dissent contends that an implemented non-self-executing treaty is not a treaty within the meaning of the Supremacy Clause and cannot preempt state law. With great respect, none of the Supreme Court decisions cited in the dissenting opinion so hold.
The dissent relies on a “consensus of legal scholars” regarding the status of implemented non-self-exeeuting treaties.
However, we need not and do not undertake to determine the precise or technical contours of how or whether implemented non-self-executing treaty provisions become the “Law of the Land” under the Supremacy Clause. Our task in the present case is to determine if, in enacting the McCarran-Ferguson Act, Congress intended for state law to reverse-preempt federal law that has as its source an implemented non-self-executing treaty.
V
There is precedent that at the time of the McCarran-Ferguson Act’s enactment, courts analyzed treaties, even when imple
[w]hether the two cases cited [holding the prior Acts of Congress “bad”] were decided rightly or not they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States.63
The Court continued,
[w]e do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could64
The Court assumed that “but for the treaty the State would be free to regulate [migratory birds within its boundaries] itself.”
We think it unlikely that when Congress crafted the McCarran-Ferguson Act, it intended any future treaty implemented by an Act of Congress to be abrogated to the extent that the treaty conflicted in some way with a state law regulating the business of insurance if Congress’s implementing legislation did not expressly save the treaty from reverse-preemption by state law. If this had been Congress’s intent, it seems probable that Congress would have included a term such as “or any treaty requiring congressional implementation” following “Act of Congress” and “such Act” in the McCarran-Ferguson Act.
Our conclusion that referral to arbitration is proper in this case is bolstered by the eongressionally sanctioned national policy favoring arbitration of international commercial agreements. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
If they are to take a central place in the international legal order, national courts will need to “shake off the old judicial hostility to arbitration,” and also then-customary and understandable unwillingness to cede jurisdiction of a claim arising under domestic law to a foreign or transnational tribunal. To this extent, at least, it will be necessary for national courts to subordinate domestic notions of arbitrability to the international policy favoring commercial arbitration.76
In the process, the Supreme Court explained that “not ... all controversies implicating statutory rights are suitable for arbitration.”
“[j]ust as it is the congressional policy manifested in the Federal Arbitration Act that requires courts liberally to construe the scope of arbitration agreements covered by that Act, it is the congressional intention expressed in some other statute on which the courts must rely to identify any category of claims as to which agreements to arbitrate will be held unenforceable.”78
The Supreme Court explained that federal antitrust law did not show such a congressional intent. Importantly, the Court said, “[w]e must assume that if Congress intended the substantive protection afforded by a given statute to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history.”
Although the MeCarran-Ferguson Act embodies a strong policy that the states have an interest in the regulation of the business of insurance, concerns that a state’s regulatory policies regarding such contracts may not be recognized in an international arbitration are ameliorated by the substantive provisions in the Convention and are not a basis for refusing to require that an arbitration go forward. As the Supreme Court observed in Mitsubishi with regard to the substance of federal antitrust law, “[h]aving permitted the arbitration to go forward, the national courts of the United States will have the opportu
VII
We are aware that our decision conflicts with that of the Second Circuit in Stephens v. American International Insurance Co.
We agree, of course, that when provisions of a treaty are not self-executing, they cannot be enforced in a court in this country unless and until those provisions are implemented by Congress. But, we submit, this does not answer the question of what Congress intended when it used the terms “[n]o Act of Congress” and “such Act” in the McCarran-Ferguson Act or why Congress would have addressed only treaties that required implementation by Congress. The text of the McCarranFerguson Act does not support the inclusion by implication of “a treaty implemented by an Act of Congress.” Because we give the phrases “Act of Congress” and “such Act” their usual, commonly understood meaning, we conclude that implemented treaty provisions, self-executing or not, are not reverse-preempted by state law pursuant to the McCarran-Ferguson Act. We find no indication from the text of the McCarran-Ferguson Act that Congress intended to signal a distinction between self-executing and non-self-executing-but-implemented treaties in the McCarran-Ferguson’s reverse-preemption clause.
We also note that the reasoning of the Second Circuit in Stephens v. American International Insurance Co. is at least in tension with that of its subsequent decision in Stephens v. National Distillers & Chemical Corp.,
In sum, the McCarran-Ferguson Act does not cause Louisiana Revised Statutes § 22:868 to reverse-preempt the Convention with regard to the dispute before us.
VIII
We finally consider Safety National’s request that we affirm the district court’s ruling that the rights under the policies are assignable. The order embodying that ruling, dated August 13, 2003, has not been certified by the district court under 28 U.S.C. § 1292(b). We therefore lack appellate jurisdiction to consider it.
We VACATE the district court’s order denying the motion to compel arbitration and REMAND for further proceedings consistent with this opinion.
Notes
. 15 U.S.C. §§ 1011-1115.
. June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3.
. Pub.L. No. 91-368, 84 Stat. 692 (1970) (codified at 9 U.S.C. §§ 201-208).
. La.Rev.Stat. Ann. § 22:868 (previously La. Rev.Stat. Ann. § 22:629).
. See generally U.S. Dep’t of Treasury v. Fabe,
. Safety Nat'l Cas. Corp. v. Certain Underwriters at Lloyd’s, London,
. Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, London,
. 15 U.S.C. § 1012(b).
. See Medellín v. Texas,
. La.Rev.Stat. Ann. § 22:868.
. See Doucet v. Dental Health Plans Mgmt. Corp.,
. Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. II(1), June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3.
. Id. art. II(3).
. 9 U.S.C. § 201.
. Id. § 202.
. Id. § 203-04.
. 15 U.S.C. § 1011.
. Id. § 1012(b); U.S. Dept. of Treasury v. Fabe,
. 15 U.S.C. § 1012(b).
. See Fabe,
. One of the criteria for determining whether a law regulates the business of insurance is whether it has the effect of spreading or transferring a policyholder's risk. See Union Labor Life Ins. Co. v. Pireno,
It could also be argued that prohibiting the enforcement of arbitration agreements in contracts between an insurer and a reinsurer is not “necessary” to "protect policyholders,” see generally Garcia v. Island Program Designer, Inc.,
We note that this court held in American Bankers Insurance Co. of Florida v. Inman,
. 15 U.S.C. § 1012(b).
.
. Id. at 1357.
. Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.
. Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487.
. Medellín,
. Id. at 1358.
. Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. II(3), June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3.
. See id. arts. III, IV.
. See Medellín,
. The later-in-time rule applies to resolve a conflict between a treaty and a statute. See Egle v. Egle,
. See United States v. Percheman,
. See U.S. Const, art. II, § 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur____”).
. Congress does not appear to distinguish between self-executing and implemented, non-self-executing treaties when using the term "treaty” in a generally applicable sense, as shown by various statutes that were promulgated in the era when the McCarran-Ferguson Act was enacted. See Revenue Act of 1941, Pub.L. No. 77-250, sec. 109, 55 Stat. 687, 695 (1941) (amending certain provisions of the Internal Revenue Code to exclude the application of those sections to residents of certain countries "so long as there is in effect with such country a treaty which provides otherwise”); Farm Labor Supply Appropriation Act, Pub.L. No. 78-229, sec. 3, 58 Stat. 11, 13 (1944) (authorizing the War Food Administrator to enter into agreements with agricultural extension services of State colleges to furnish certain services to domestic interstate and foreign agricultural workers and to "require the modification or termination of any agreement with any such extension service whenever he finds such action to be necessary in order to carry out the terms of any treaty or international agreement to which the United States of America is signatory”)-
In other federal statutes that are currently in effect, it does not appear that Congress has used the term "treaty” to exclude implemented non-self-executing treaties. As an example, in our immigration laws, the term “immigrant” "means every alien except ... an alien entitled to enter into the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national ....” 8 U.S.C. § 1101 (a)(l5)(E). This provision would not seem to exclude a treaty that is non-self-executing but that has been implemented by an Act of Congress.
It would seem that "treaty” would include all implemented treaties, regardless of whether they were self-executing or had required implementing legislation. Yet, if we were to conclude that implemented non-self-executing treaties can be nothing more than an "Act of Congress,” then none of the references to a "treaty” or "treaties” in the enactments we have discussed would include implemented, non-self-executing treaties. This is not a reasonable construction of these enactments.
. Cf. Humana Inc. v. Forsyth,
. 9 U.S.C. § 201.
. Id. § 202. There is no doubt that the present dispute among three insurers arises out of legal relationships that are commercial. We are not called upon to explore the outer bounds of what "commercial” legal relationships may encompass.
. Id. § 203. LSAT does not argue that this jurisdictional statute, or other jurisdictional statutes such as 28 U.S.C. § 1331, invalidates, impairs, or supersedes Louisiana’s law. We look skeptically on a claim that the McCarran-Ferguson Act intended to deny diversity jurisdiction or federal question jurisdiction to federal courts in the state of Louisiana. See Grimes v. Crown Life Ins. Co.,
. 9 U.S.C. § 202; see also id. § 205 ("Where 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 ... may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States____”).
. Id. § 203.
. Id. (emphasis added).
. Id. § 208 ("Chapter 1 applies to actions and proceedings brought under this chapter to the extent that chapter is not in conflict with this chapter or the Convention as ratified by the United States.”).
. Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. II(1), June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3.
. Id. art. II(3).
. Id. art. II(1), (3). Plaintiffs have not raised various defenses to arbitrability that are available under the Convention. For example, the Supreme Court noted that "Art. II(1) of the Convention, which requires the recognition of agreements to arbitrate that involve ‘subject matter capable of settlement by arbitration,' contemplates exceptions to arbitrability grounded in domestic law.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
. The single phrase from the Supreme Court's decision in Whitney v. Robertson,
Similarly, the dissent lifts quotations from Edye v. Robertson (Head-Money Cases),
.
. Post at 743.
. Hopson,
. The dissent additionally cites, post at 743-44, the concurring opinion in Fund for Animals, Inc. v. Kempthorne,
. Post at 741-42.
. A discussion of self-executing and non-self-executing treaties appears in at least two of Professor Henkin's publications, L. Henkin, Foreign Affairs and the United States Constitution, 198-204 (2d ed.1996); L. Henkin, Foreign Affairs and the United States Constitution, 156-161 (1972). A footnote in the former contains the "[s]trictly” sentence that appears in comment h of the Restatement. L. Henkin, Foreign Affairs and the United States Constitution, 200 n* (2d ed. 1996). However, he wrote immediately following that sentence that "[sjometimes the implementing legislation gives the treaty itself legal effect or incorporates it by reference.” Id. Professor Hen-kin also opined;
The difference between self-executing and non-self-executing treaties is commonly misunderstood. Whether a treaty is self-executing or not, it is legally binding on the United States. Whether it is self-executing or not, it is supreme law of the land. If it is not self-executing, Marshall said, it is not "a*727 rule for the court”; he did not suggest that it is not law for the President or for Congress. It is their obligation to see to it that it is faithfully implemented; it is their obligation to do what is necessary to make it a rule for the courts if the treaty requires that it be a rule for the courts, or if making it a rule for the courts is a necessary or a proper means for the United States to carry out its obligation.
Id. at 203-04.
. See Lim v. Offshore Specialty Fabricators, Inc.,
. Post at 743-44.
. In common parlance, an implemented non-self-executing treaty provision can be "enforced” as the law of the land, and a non-self-executing treaty provision can become "domestic law” when implemented. The Supreme Court itself expressed these concepts in Medellín v. Texas,
.
. Id. at 431,
. Id. at 431-32,
. Id. at 430-31,
. Id. at 432,
. Id. at 433,
. Id.
. Id.
. Id. at 434,
. Id. (citations and internal quotation marks omitted).
. Id.
. Id. at 435,
. Id. at 434,
. 15 U.S.C. § 1012(b).
. Cf. Am. Ins. Ass'n v. Garamendi,
As the text itself makes clear, the point of McCarran-Ferguson’s legislative choice of leaving insurance regulation generally to the States was to limit congressional preemption under the commerce power, whether dormant or exercised .... [A] federal statute directed to implied preemption by domestic commerce legislation cannot sensibly be construed to address preemption by executive conduct in foreign affairs.
Id. at 427-28,
.
. Id. at 616,
. Id. at 626-27,
. Id. at 638,
. Id. at 638-39,
. Id. at 627,
. Id. (emphasis added).
. Id. at 628,
. Id. at 638,
.
. Id. at 45.
. Id.
. Id. at 43.
. Id. at 45.
. Id.
.
. Id. at 1231.
. Id. at 1233.
. Id.
. Id. at 1233 n. 6.
. See Yamaha Motor Corp., U.S.A. v. Calhoun,
. "The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of." Ashwander v. Tenn. Valley Authority,
Concurrence Opinion
concurring in the judgment:
I would hold that the relevant treaty provision, Article II of the Convention, is self-executing and that it therefore preempts Louisiana Revised Statute § 22:868 by virtue of the Supremacy Clause. This result is dictated by the decisions of the Supreme Court, most recently in Medellín v. Texas,
In Medellin, the Court “recognized the distinction between treaties that automatically have effect as domestic law, and those that — while they constitute international law commitments — do not by themselves function as binding federal law.”
Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.
The text of the relevant treaty provision, Article II, provides:
1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.
Medellin provides lower courts with a framework for determining whether treaty provisions are self-executing. The Court made clear that “[t]he interpretation of a treaty, like the interpretation of a statute, begins with its text.” Medellín,
When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.
Of particular concern here is Section 3 of Article II, which provides that domestic courts, upon request of a litigant, shall enforce any arbitration agreement to which that litigant is a party by referring the parties to arbitration. Section 3 is addressed to the courts of Contracting States, not to the States themselves or to their respective legislatures.
The text of Article II constitutes “a directive to domestic courts.” Id. at 1358 (identifying the failure of Article 94 of the United Nations charter to include a directive to domestic courts as a basis for a finding of non-self-execution). It leaves no discretion to the political branches of the federal government whether to make enforceable the agreement-enforcing rule it prescribes; instead, that rule is enforceable by the Convention’s own terms.
Certain references to the Convention and Convention Act by the Medellin Court, the Second Circuit, and this court arguably support a contrary position. I briefly explicate why this is not the case. In Medellin, the Court cited the Convention Act for the proposition that “[t]he judgments of a number of international tribunals enjoy a different status because of implementing legislation enacted by Congress.” Medellín,
Importantly, Medellin itself concerned the enforceability of a judgment of the International Court of Justice. See id. at 1356 (“The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.” (emphasis in original)). The Court’s dictum cited the Convention Act as an exemplar of Congress’s ability to accord “domestic effect” to the judgments of similar international tribunals. The United States’s obligation to “recognize arbitral awards as binding” is set forth in Article III of the Convention.
Meanwhile, the Second Circuit, in Stephens v. American International Insurance Co., concluded that “the Convention is not self-executing, and therefore, relies upon an Act of Congress for its implementation.”
Although there may be a growing judicial consensus that multilateral treaties are presumptively non-self-executing, my conclusion that Article II of the Convention is self-executing is compelled by a straight forward application of binding Supreme Court precedent. The majority and dissent bypass the self-execution question. I would instead hew, as we must, to the plain language of Medellin and conclude that Article II is self-executing.
Because Article II of the Convention mandates enforcement of arbitration agreements, it conflicts with and therefore preempts Louisiana law. On this basis, I would vacate the district court’s denial of the motion to compel arbitration and remand for further proceedings.
. Contrary to the dissent's conclusion, the Underwriters have not waived the self-execution argument. In their opening brief to the panel, they contended that the treaty provision was self-executing by stressing their reliance "solely upon the provisions of Article II of the Convention ... and not on any special implementing legislation.” Appellant Br. 33 n. 17. That this argument was presented to the panel is plainly reflected in its opinion. Safety Nat'l Cas. Corp. v. Certain Underwriters at Lloyd’s, London,
In addition, none of the cases cited by the dissent establishes that a party suffers waiver should it fail to repeat to the en banc court every argument that it made to the panel. Further, read in context, the language taken by the dissent from the Underwriters’ en banc reply brief does not concede the self-execution point. As the section heading preceding that language makes clear, the Underwriters addressed the "primaiy” question "[p]osed by the [p]anel.” Appellant En Banc Reply Br. 6. Underwriters should not be penalized for focusing their en banc briefing on the major issue addressed by the panel. Relatedly, LSAT cannot complain that it lacks notice of self-execution as a ground for disposition because its en banc brief understands the self-execution question to be contested, urging the court to "find ... that the Convention was not self-executing.” Appellee En Banc Br. 27-40.
. This court has reached a similar conclusion. See United States v. Postal,
. Article II, Section 1 does contain a reference to Contracting States, which provides that such States "shall recognize" arbitration agreements. Any suggestion that this reference renders Article II non-self-executing is
. There is a plausible argument that the "null and void” language of Article II, Section 3 would permit a domestic court to refuse to enforce an arbitration agreement because of a contrary state law such as § 22:868. However, in Scherk v. Alberto-Culver Co., the Supreme Court heeded the "concern that courts of signatory countries in which an agreement to arbitrate is sought to be enforced should not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability or in a manner that would diminish the mutually binding nature of the agreements.”
. The Medellin Court pointed out that in prior cases, in addition to a treaty's text, it had "also considered as 'aids to [a treaty's] interpretation' the negotiation and drafting history of the treaty as well as 'the post-ratification understanding’ of signatory nations.”
. Article III states, in full:
Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
. See Lim v. Offshore Specialty Fabricators, Inc.,
Dissenting Opinion
with whom
join, dissenting:
Today the court concludes that an Act of Congress is not really an Act of Congress. In doing so, it holds that a non-self-executing treaty,
I.
The court errs today in what should have been an exercise in garden-variety statutory interpretation: instead of an
A.
The court’s effort to frame this case as a conflict between the Convention itself and Louisiana law puts the cart before the horse by failing to consider basic preemption doctrine before analyzing the McCarran-Ferguson Act. Fundamentally, this is a Supremacy Clause case. See Munich Am. Reinsurance Co. v. Crawford,
A crucial distinction between a self-executing treaty and a non-self-executing one is that the former, but not the latter, can provide a judicially-enforceable source of preemptive law under the Supremacy Clause. Beginning with Foster v. Neilson,
A treaty is primarily a contract between two or more independent nations .... When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.
Therefore, treaties come in two separate and distinct types: self-executing treaties, which can undoubtedly preempt state law in a case like this, and non-self-executing treaties, which cannot. The court brushes away this key distinction, declining to hold that the Convention is self-executing, but nevertheless stating that “the Convention, an implemented treaty, rather than the Convention Act, supersedes state law.” Op. at 725 (emphasis added); see also Op. at 717-18 (“[T]he McCarran-Ferguson Act does not apply to the Convention.” (emphasis added)); Op. at 724 (“[I]t is a treaty (the Convention), not an act of Congress (the Convention Act), that we construe to supersede Louisiana law.”).
The court does not dispute that a non-self-executing treaty provision, of itself, has no legal force in domestic courts, and therefore no preemptive force, while a self-executing provision does. It concludes, however, that upon implementation by statute, a non-self-executing treaty is promoted to the Supremacy Clause status it would have enjoyed had it been self-executing. In this view, a treaty is a treaty. Under this view, a non-self-executing treaty requires an additional step to become binding, but once that step is passed — once the treaty is implemented — it is the Supremacy Clause equivalent of a self-executing treaty. The court, therefore, holds to the idea that a treaty, rather than an “Act of Congress,” causes the conflict in this case, repeatedly asking whether “the Convention” supersedes Louisiana law.
But that is wrong. The court points to no case holding that a non-self-executing treaty can supersede state law. See David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129, 149 (1999) (“[T]o the best of the author’s knowledge, no U.S. court has ever held a treaty provision to be non-self-executing and then applied it directly to decide a case.”). Furthermore, there is no argument that Foster, Medellin, or any similar case supports such a result. Simply put, implementing legislation — even if it fully implements a treaty— does not promote a non-self-executing treaty to the Supremacy Clause status it would have enjoyed had it been self-executing. As a matter of directly applicable domestic law, the non-self-executing treaty remains as inert as a provision of a model code, a source of content incorporated by reference.
B.
Untethered to the moorings of Supreme Court precedent, scholarly consensus in this area, or case law from other circuits, the court sets off on its course into uncharted Supremacy Clause waters. Missouri v. Holland,
What is relevant to this case is not the holding of Holland, but the manner in which it frames the conflict between an implemented treaty and state law prerogatives embodied in a Missouri statute. It is clear from the first sentence of Holland that the implementing act — not the treaty — is considered the source of the conflict. See
Not only does Holland not support the conclusion that implementation by statute imbues a non-self-executing treaty with preemptive abilities; leading Supreme Court cases on the self-executing/non-self-executing distinction provide no support, either. Indeed, the court does not attempt to argue that Foster, Whitney, the Head-Money Cases, or Medellin, or any case interpreting any of them, supports the premise that the non-self-executing Convention is capable of “superceding” state law under the Supremacy Clause. Considering the unusual nature of the question (and before it overrules the district court and creates a circuit split), I would expect the en banc court to devote some attention to the relevant case law in this area. It fails to do so.
The court also ignores the consensus of legal scholars regarding the Supremacy Clause status of implemented treaties. In direct contradiction to the holding today, the commentators overwhelmingly conclude that under current (and longstanding) law, it is only the implementing statute, not the non-self-executing treaty, that can be enforced by the courts so as to be capable of preemption.
In its quest to give the Convention new-found preemptive abilities, the court similarly disregards case law from other circuits that have concluded that non-self-executing treaties lack preemptive force in U.S. courts. Indeed, the Second Circuit has so concluded with respect to the exact same non-self-executing treaty in this case. Stephens v. Am. Int’l Ins. Co.,
The notion that non-self-executing treaties are inapplicable in domestic courts finds support in other circuits as well. In Hopson v. Kreps, the Ninth Circuit concluded in no uncertain terms that “[t]he issue in any legal action concerning a statute implementing a treaty is the intended meaning of the terms of the statute.”
Although the court cites cases from our circuit purporting to apply the Convention rather than the Convention Act,
II.
Perhaps the court today does not really mean to cut a new path through Supremacy Clause territory to endow non-self-executing treaties with heretofore undiscovered preemptive powers. But that is what it must do in order to justify framing its approach as an inquiry into whether the Convention itself is an “Act of Congress.”
A.
Two sources of law are here in conflict. The first source of law is Louisiana Revised Statute § 22:629, which bars the use of arbitration clauses in insurance disputes.
No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance ....
§ 1012(b) (emphasis added). With respect to “Acts of Congress,” the McCarran-Ferguson Act “impos[es] what is, in effect, a clear-statement rule that state laws enacted ‘for the purpose of regulating the business of insurance’ do not yield to conflicting federal statutes unless a federal statute specifically requires otherwise.”
The court errs on the question whether the second source of law in this case constitutes an “Act of Congress.” If it does, then like all Acts of Congress that do not “specifically relate[ ] to the business of insurance,” it is subject to reverse-preemption by state law under McCarran-Ferguson; if it is not an Act of Congress but rather some other source of federal law, like a self-executing treaty, then McCarran-Ferguson does not apply, and the Louisiana law would be preempted by straightforward application of the Supremacy Clause.
The Convention, as a non-self-exeeuting treaty, cannot itself provide the rule of decision here, so the Convention Act must be the second source of law.
B.
The court justifies its decision to look to the Convention rather than the Convention Act on the ground that the Convention Act implements the Convention largely by reference, as opposed to setting out the Convention provisions within the text of the Act.
This argument is essentially a play on words, which wrenches the word “construe” from the verb phrase in which it appears in the statute:
No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance.
15 U.S.C. § 1012(b). The relevant phrase is “construe! ] to invalidate, impair, or supersede.” Thus, “construe” does not merely mean to refer to the text for content. The plain meaning of “construe ... to supersede any law enacted by any State” is to give preemptive force, to apply the source of law in question rather than state law. Accordingly, to merely “operate with! ] reference to the contents” of the Convention — to merely have a copy handy and refer to it — is not to “construe” the Convention in the McCarran-Ferguson sense.
Commentators also agree that regardless of whether one must refer to a separate treaty text, or whether instead that text is set out in the implementing statute itself, it is the statute, not the treaty, that courts apply. See, e.g., Carlos Manuel Vázquez, The Separation of Powers as a Safeguard of Nationalism, 83 Notre Dame L.Rev. 1601, 1617 (2008) (“When a court gives effect to a treaty because it is instructed to do so by a statute, it is applying the statute, not the treaty.”); Tim Wu, Treaties’ Domains, 93 Va. L.Rev. 571, 588 (2007) (“When Congress implements a treaty through a statute, the statutory regime completely replaces the treaty as a basis for direct enforcement. That is, judges do not return to the original text of the treaty as a law they can enforce directly.”).
In the end the court does not see the “operate with[ ] reference to the contents” theory all the way through. The court does not merely look to the Convention in order to fill gaps in the language of the Convention Act. Rather, the opinion makes clear that the court means to apply the Convention directly, as if it had preemptive force. For the reasons given in Part I above, it is not possible to “construe [the Convention] to supersede” anything, because the Convention is incapable of providing a rule of decision in a U.S. court. Louisiana law governs unless some applicable source of federal law can preempt. The treaty cannot do so. Therefore, the only remaining candidate is the Convention Act.
III.
Only a single statutory interpretation question remains: is the Convention Act an “Act of Congress” within the meaning of the McCarran-Ferguson Act? We can
UNITED STATES STATUTES AT LARGE
91ST CONGRESS — 2ND SESSION Convening January 19, 1970
An Act
To implement the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Pub.L. No. 91-368, 84 Stat. 692 (1970) ( emphasis added).
This is an Act of Congress. The legislation is plainly labeled as an Act of Congress, and no ambiguity on this point is cited by the court or by the parties. “The preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’” BedRoc Ltd. v. United States,
Because the court is convinced that the straightforward interpretation of the words “Act of Congress,” would produce an “untenable” result, the court’s analysis veers off course into a fruitless search for Congress’s true intent. As a result, the court ends up supplanting the plain meaning of the unambiguous term “Act of Congress” with a strained interpretation aimed at protecting important federal policies.
First, the court resorts to speculation about what Congress must have had in mind when it included the words “Act of Congress” in the reverse-preemption provision of the McCarran-Ferguson Act. The court concludes that “there is no apparent reason ... why Congress would have chosen to distinguish in the McCarran-Ferguson Act between treaties that are self-executing and those that are not self-executing but have been implemented.” Op. at 723. It therefore considers it “unlikely” that in passing McCarran-Ferguson, Congress “intended any future treaty implemented by an Act of Congress to be abrogated to the extent that the treaty conflicted ... with a state law regulating ... insurance if Congress’s implementing legislation did not expressly save the treaty from reverse-preemption.” Op. at 729.
The court contends that reading the words “Act of Congress” to include the Convention Act is “untenable,” and states that it does “not consider it reasonable” to embrace such a reading of the statute. Op. at 723-24. Yet there is no citation to any rule of construction that would make these judgments relevant to the interpretive task, as policy-based interpretive techniques have no place in the court’s analysis where the language of the statute is clear.
In addition to the court’s improper inquiry into what Congress intended when it wrote the unambiguous words “Act of Congress,” the court expounds for some length-indeed for an entire section-upon the federal policies protected by its interpretation. See Op. at 730-31 (“Our conclusion that referral to arbitration is proper in this case is bolstered by the congressionally sanctioned national policy favoring arbitration of international commercial agreements.”). But in light of a clearly worded statute, this factor cannot support the weight that the court’s analysis forces it to bear. Indeed, even if such policy considerations were relevant to the interpretation of an unambiguous statute, and they are not, the court’s analysis barely acknowledges the state interest that was significant enough to give rise to the rare reverse-preempting provision of the McCarran-Ferguson Act in the first place.
IV.
In summary, I would follow the holding of the Second Circuit (the only circuit to have squarely decided this question) in Stephens. In a domestic court, a treaty that Congress enacts is not law itself, and in fact it is the statute that counts and the statute amounts to a standard congressional act.
I would hold that:
1. The non-self-executing Convention
2. The Convention Act implementing the Convention is an Act of Congress that does not “specifically relate[] to the business of insurance”;
3. The McCarran-Ferguson Act provides that “No Act of Congress” preempts state law unless the Act of Congress “specifically relates to the business of insurance”;
4. The Louisiana statute is “a[] law enacted by a[] State for the purpose of regulating the business of insurance” that the Convention Act would “invalidate, impair, or supersede”;
5. The Convention Act is therefore reverse-preempted by the Louisiana statute by operation of the McCarran-Ferguson Act; and
6. Accordingly, the district court correctly ruled that no federal law prevents Louisiana Revised Statute § 22:629 from applying in this case.
% #
The court today has declined the opportunity to align itself with the Second Circuit and the Supreme Court’s jurisprudence in this area. It has muddied the waters of our statutory interpretation jurisprudence, by reasoning on an ad hoc basis from its own conception of what is “reasonable,” or “[ Jlikely” for Congress to have intended, rather than looking to what Congress said. Simultaneously, with little doctrinal discussion, it has applied a non-self-executing treaty as domestic, preemptive law in an unprecedented manner. As a result, “at least until our superiors
Respectfully, I dissent.
. The question of whether or not the treaty is self-executing is not before the court. See infra note 31.
. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3. (Convention).
. 15 U.S.C. §§ 101-115.
. 9 U.S.C. §§ 201-208.
. See Op. at 718 ("[I]t is when we construe a treaty ... that the state law at issue is superseded.”); Op. at 724 ("[I]t is a treaty (the Convention), not an act of Congress (the Convention Act), that we construe to supersede Louisiana law.”); see also Op. at 722-23 ("The fact that a treaty stands on equal footing with legislation when implemented by Congress does not mean that it ceases to be a treaty and becomes an 'Act of Congress.' ” (footnote omitted)).
. Compare Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd's London,
. Despite the court’s belief that it "need not and do[es] not undertake to determine the precise or technical contours of how or whether implemented non-self-executing treaty provisions become the 'Law of the Land' under the Supremacy Clause,” Op. at 727, that is what it necessarily must do in order to justify framing its approach as an inquiry into whether the Convention itself is an "Act of Congress.” See infra Part II.
. Effective January 1, 2009, § 22:629 has been renumbered § 22:868. See La.Rev.Stat. Ann. § 22:868 (Special Pamphlet A 2009). The provision was numbered § 22:629 at all times relevant to this suit.
. See AT&T Corp. v. Public Utility Comm'n of Tex.,
. There is an argument, based on the text of the Supremacy Clause, that the Constitution should not recognize two species of treaty. After all, the clause provides that the "Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby.” U.S. Const. art. VI, § 2, cl. 2 (emphasis added). But this interpretation has not prevailed.
. See Whitney,
. The Court stated the following regarding the distinction between international obligations and domestic obligations recognized by courts:
A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.
But a treaty may also contain provisions ... which are capable of enforcement as between private parties in the courts of the country .... The constitution of the United States places such provisions as these in the same category as other laws of congress by its declaration [in the Supremacy Clause] that "this constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land."
Id. at 598-99,
. Of course, as a matter of international law, the United States is bound by its commitments, including those arising from non-self-executing treaties. See, e.g., Ian Brownlie, Principles of Public International Law 620 (2008) (describing the principle of pacta sunt
. This includes commentators who are critical of the present state of the law and those
. The court contends that Stephens "is at least in tension” with the Second Circuit’s subsequent decision in Stephens v. National Distillers & Chem. Corp.,
. The court held there was no conflict because in fact, the New Jersey statute did not preclude arbitration (or removal to federal court) pursuant to the Convention Act. See Suter,
. Even the proposition that a non-self-executing treaty could be relevant as an interpretive aid to resolve ambiguities in an implementing act is contested. See, e.g., Fund for Animals, Inc. v. Kempthorne,
. See Lim v. Offshore Specialty Fabricators, Inc.,
. In Lim, for example, employment contracts, not insurance agreements, were at issue; the McCarran-Ferguson Act was therefore not triggered and state law was preempted by federal law — as a formal matter, by the Convention Act rather than the Convention itself, but it made no difference in that case.
. The Restatement acknowledges the practice of referring to a non-self-executing treaty, for convenience’s sake, as applicable law when actually it is not. In fact, the Restatement does so itself. Section 111(3) states the basic rule regarding non-self-executing treaties:
Courts in the United States are bound to give effect to international law and to international agreements of the United States, except that any "non-self-executing” agreement will not be given effect as law in the absence of necessary implementation.
At first glance, this appears to suggest that a non-self-executing agreement will "be given effect as law” upon implementation. Comment h, however, makes clear this is not the case:
Under Subsection (3), strictly, it is the implementing legislation, rather than the [non-self-executing] agreement itself, that is given effect as law in the United States. That is true even when a non-self-executing agreement is "enacted” by, or incorporated in, implementing legislation.
Unlike the cases that the court cites, the present case is the rare one that requires us to be “strict” in distinguishing between the treaty and the act.
. The court cites language from the Convention Act itself indicating a “proceeding falling under the convention shall be deemed to arise under the laws and treaties of the United States,” Op. at 724 (quoting 9 U.S.C. § 203) (emphasis added), implying that Congress thought the Convention Act could apply directly. This argument does not undermine the consensus that non-self-executing treaties lack preemptive force in the courts. At most, this language could conceivably be relevant to determining whether Congress thought the treaty was self-executing. But assuming (as the court does) that it is not self-executing, Congress simply lacks the power to alter, by statute, constitutional decisions such as Foster, Whitney, and the Head-Money Cases, which indicate that non-self-executing treaties are not directly enforceable by the courts.
. Thus, it is no surprise to find the court inferring from our precedents that “implemented provisions of a non-self-executing treaty can themselves be given effect by the courts as federal law,” Op. at 727 & n. 57, concluding that “it is by reference to the Convention that we have a command — a judicially enforceable remedy — that we 'supersede' Louisiana law," Op. at 725, recognizing that “[i]mplementing legislation that does not conflict with or override a treaty does not replace or displace that treaty,” Op. at 722-23, and deciding what it means for preemptive law to have “as its source an implemented non-self-executing treaty,” Op. at 727.
. Doucet v. Dental Health Plans Mgmt. Corp.,
. Congress has prescribed rules of statutory construction in other statutes as well. See, e.g., 50 U.S.C. § 1547(a) (War Powers Resolution) (imposing clear statement rule for legislation authorizing introduction of United States Armed Forces into hostilities). Furthermore, the formal treaty/statute distinction the court elides today is essential in a number of other contexts. See, e.g., 18 U.S.C. § 4001(a) (Non-Detention Act) (requiring that any "imprison[ment] or detention]” by the United States of an American citizen be effected pursuant to an "Act of Congress"; a treaty is insufficient (emphasis added)); 28 U.S.C. § 1350 (Alien Tort Statute) ("The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States,” but not an Act of Congress) (emphasis added); War Powers Resolution, 50 U.S.C. § 1547(a)(2) (stating that specific authorization for the introduction of United States Armed Forces into hostilities may not be inferred from a treaty alone, but instead requires implementing legislation); Curtis A. Bradley & Jack L. Goldsmith, Foreign Relations Law 396 (2d ed. 2006) ("It is generally accepted that treaties may not by themselves create domestic criminal liability in the United States”; statutes are required); 1 Restatement (Third) of Foreign Relations Law of the United States § 111, cmt. i (1987) [hereinafter Restatement] ("It has been commonly assumed that an international agreement [e.g., a treaty] cannot itself bring the United States into a state of war.”); Edwards v. Carter,
. Once we remove the Convention as a possible source of preemption, then this case is
. Congress incorporated the substance of the treaty in the implementing Act of Congress largely by reference. See, e.g., 9 U.S.C. § 201 (“The Convention ... shall be enforced in United States courts in accordance with this chapter.’’).
. Our cases further confirm that the phrase "construed to invalidate, impair, or supersede” entails applying federal law to invalidate, impair, or supersede state law. See Miller v. Nat'l Fid. Life Ins. Co.,
. There is a vague suggestion in these passages that the court still holds to the panel’s conception of the treaty and its implementing legislation as somehow conglomerated. Because no such chimera exists in our law, it is reasonable to assume that Congress did not have it in mind when it passed the McCarranFerguson Act. However, this is irrelevant to statutory interpretation because we are to look to what Congress said, not to what Congress may or may not have had in mind.
Furthermore, any theory based on a hybridized treaty-statute loses track of the basic character of this case. It is a preemption case, and preemption requires a source of federal law capable of displacing state law. If the Convention cannot do so, and the McCarran-Ferguson Act prevents the Convention Act from doing so, then no hybrid of the two can do so.
. The court acknowledges that “the starting point for interpreting a statute is the language of the statute itself." Op. at 718 & n. 9 (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,
. Congress, in enacting McCarran-Ferguson, explicitly stated that "continued regulation and taxation by the several States of the business of insurance is in the public interest." 15 U.S.C. § 1011. McCarran-Ferguson was a response to a Supreme Court decision interpreting the Sherman Act to apply to the business of insurance, "thereby interfering with state regulation of insurance in ... unanticipated ways.” Barnett Bank of Marion Co., N.A. v. Nelson,
. We cannot hold that the treaty is self-executing because no party asks us to do that. Our en banc holdings establish that we reach only the issues properly brought to the panel and the court en banc. United States v. Brace,
At the panel stage, the Underwriters failed to press for such a holding, mentioning the argument only in a footnote of their merits brief. Appellant’s Brief 33 n. 17; see Davis v. Maggio,
At the en banc stage, the Underwriters explicitly waived their self-execution argument. The court recognizes that "[tjhe Underwriters addressed whether the Convention is self-executing only in briefs to the panel." Op. at 721 (emphasis added). But more importantly, the Underwriters’ en banc reply brief actually disclaims any desire to have the court hold that the treaty is self-executing:
The question before the Court is not whether the Convention is self-executing or what preemptive effect, if any, an unimplemented non-self-executing treaty would have on a conflicting state law. The question is what preemptive effect a later-in-time, implemented treaty has on conflicting state law.
Appellant’s En Banc Reply Brief 6-7. If we take the concurrence’s suggestion and look to "the section heading preceding that language,” Concurrence at 733 n. 2, the inference is no different, for there again the Underwriters present the treaty as non-self-executing: "LSAT Avoids Answering the Question Posed by the Panel — Why Should an Implemented Non-Self-Executing Treaty Be Treated Any Differently Than a Self-Executing Treaty?” Appellant’s En Banc Reply Brief 6.
The concurrence urges us to look at LSAT’s en banc brief to determine whether or not the Underwriters presented the issue. Concurrence at 732-33 n. 2. Rather than look to LSAT’s brief for the Underwriters’ argument, we could have just asked the Underwriters what they had briefed. And, in fact, we did:
Q: That the clause is self-executing, section three, is that somewhere in your brief?
A: In the en banc briefs, we did not go into that issue, Your Honor, no we did not.
Recording of Oral Argument, Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s London,
Accordingly, we cannot reverse the trial court by holding that the treaty is self-executing because the Underwriters first forfeited and then waived the argument, and "it is not for us to decide which issues should be presented, or to otherwise try the case for the parties,” Brace,