UPDATE: GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC: U.S. Supreme Court Grants Writ of Certiorari to Decide the Question of Whether the New York Convention Permits Non-Signatories to Compel Arbitration Under the Doctrine of Equitable Estoppel

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Zachary Torres-Fowler

As discussed in our post from last year, on August 30, 2018, the Eleventh Circuit Court of Appeals reversed a lower court decision to compel arbitration between an Alabama steel plant owner, Outokumpu Stainless USA, LLC (“OS”), and a French division of General Electric Co, GE Energy Power Coversion France SAS (formerly Coverteam SAS). In so ruling, the Eleventh Circuit held that a non-signatory to a contract could not compel arbitration under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), as incorporated in Chapter 2 of the Federal Arbitration Act (“FAA”), through the doctrine of equitable estoppel. Dissatisfied with the Eleventh Circuit’s decision, on February 7, 2019, GE filed a petition for a writ of certiorari with the Supreme Court of the United States to review the Eleventh Circuit’s decision and on June 28, 2019, the Court granted the GE’s petition.  In the field of international construction arbitration, where multi-party disputes between owners, contractors, and subcontractors are common and where the rights of non-signatories to compel arbitration are regularly debated, the Supreme Court is slated to provide important guidance. Continue reading “UPDATE: GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC: U.S. Supreme Court Grants Writ of Certiorari to Decide the Question of Whether the New York Convention Permits Non-Signatories to Compel Arbitration Under the Doctrine of Equitable Estoppel”

Deciding Arbitrability and Arbitration Agreements: Eleventh Circuit Refines Its Interpretation of the Federal Arbitration Act and United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Outokumpu Stainless USA, LLC v. Converteam SAS, 2018 U.S. App. LEXIS 24671 (11th Cir. Aug. 30, 2018)

On August 30, 2018, the Eleventh Circuit Court of Appeals reversed a lower court decision to compel arbitration between an Alabama steel plant owner and a French division of General Electric Co.  The case is noteworthy because the Court settled two questions of law within the Eleventh Circuit about the interpretation of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”) and the Federal Arbitration Act (“FAA”). The first question concerned the interpretation the FAA’s grant of removal jurisdiction to the federal courts.  The second concerned whether an entity could compel arbitration under the Convention despite the lack of a signed arbitration agreement.

Outokumpu Stainless, LLC (“OS”) operates a steel plant in Calver, Alabama that contains three cold rolling mills.  In 2007, OS entered into three separate agreements with an entity known as Fives for the purchase of the mills.  The Agreements each contained an arbitration clause which required all disputes be resolved via arbitration in Germany under the Rules of Arbitration of the ICC.  The Agreements also provided that Fives, and all of its subcontractors, would be treated as one and the same under the contracts.

Fives subcontracted with GE Energy (“GE”) to produce motors for the mills.  The motors were installed between 2011 and 2012.  By June 2014 they began to fail. Continue reading “Deciding Arbitrability and Arbitration Agreements: Eleventh Circuit Refines Its Interpretation of the Federal Arbitration Act and United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards”