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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 17-10944
____________________
OUTOKUMPU STAINLESS USA, LLC,
SOMPO JAPAN INSURANCE COMPANY OF AMERICA,
as subrogee of Outokumpu Stainless USA, LLC,
POHJOLA INSURANCE LIMITED,
AIGEL EUROPE LIMITED,
as subrogee of Outokumpu Oyj,
TAPIOLA GENERAL MUTUAL INSURANCE COMPANY,
as subrogee of Outokumpu Oyj,
AXA CORPORATE SOLUTIONS ASSURANCE SA UK
BRANCH,
as subrogee of Outokumpu Oyj,
HDI GERLING UK BRANCH,
as subrogee of Outokumpu Oyj,
MSI CORPORATE CAPITAL LTD.,
as sole Corporate Member of Syndicate 3210,
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2 Opinion of the Court 17-10944
as subrogee of Outokumpu Oyj,
ROYAL & SUN ALLIANCE, PLC,
as subrogee of Outokumpu Oyj,
Plaintiffs-Appellants,
SOMPO JAPAN INSURANCE COMPANY OF AMERICA, et al.,
Plaintiffs,
versus
COVERTEAM SAS,
a foreign corporation now known as
GE Energy Power Conversion France SAS, Corp.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:16-cv-00378-KD-C
____________________
ON REMAND FROM THE SUPREME COURT OF THE
UNITED STATES
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17-10944 Opinion of the Court 3
Before TJOFLAT and JULIE CARNES, Circuit Judges, and BLOOM,* Dis-
trict Judge.
JULIE CARNES, Circuit Judge, and BLOOM, District Judge:
This appeal is on remand from the United States Supreme
Court, which reversed our decision in Outokumpu Stainless USA,
LLC v. Converteam SAS, 902 F.3d 1316 (11th Cir. 2018) (“Ou-
tokumpu II”). See GE Energy Power Conversion France SAS,
Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637 (2020)
(“Outokumpu III”).
I. Background
The district court compelled Plaintiff Outokumpu Stainless
USA, LLC, and its insurers (collectively, “Outokumpu”) to arbi-
trate their Alabama state law claims against Defendant GE Energy
Power Conversion France SAS, Corp. (formerly known as Con-
verteam SAS) (“GE Energy”). See Outokumpu Stainless USA LLC
v. Converteam SAS, No. CV 16-00378-KD-C, 2017 WL 401951, at
*3–6 (S.D. Ala. Jan. 30, 2017). Outokumpu’s predecessor had exe-
cuted three contracts with Fives (then F.L. Industries, Inc.) for the
provision of cold rolling mills used for manufacturing and pro-
cessing steel products (the “Contracts”). The Contracts contained
* Honorable Beth Bloom, United States District Judge for the Southern Dis-
trict of Florida, sitting by designation.
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4 Opinion of the Court 17-10944
an arbitration clause covering “[a]ll disputes arising between both
parties in connection with or in the performance of the Contract[.]”
The Contracts defined Outokumpu as the “Buyer” and Fives
as the “Seller,” and referred to “Buyer” and “Seller” “individually
as ‘Party’ and collectively as ‘Parties.’” But the Contracts also pro-
vided that “[w]hen Seller is mentioned it shall be understood as
Sub-contractors included, except if expressly stated otherwise.”
The Contracts defined “Sub-contractor” as “any person (other than
the Seller) used by the Seller for the supply of any part of the Con-
tract Equipment, or any person to whom any part of the Contract
has been sub-let by the Seller[.]” Appended to each contract was a
subcontractor list that enumerated the “Preferred Brands or Man-
ufacturers” for Outokumpu and Fives. GE Energy was on that list.
Outokumpu and GE Energy disagreed over the meaning of
“both parties” in the arbitration clauses. Outokumpu argued to the
district court that “both parties” meant only the signatories to the
Contracts, excluding GE Energy. GE Energy argued that “both par-
ties” included the “Buyer” and “Seller,” and “Seller” is understood
to include subcontractors, like itself. The district court agreed with
GE Energy, concluding “that the plain language of the arbitration
provisions . . . supports a reasonable interpretation that subcon-
tractors are not expressly excluded from the meaning of ‘parties’ in
the arbitration provisions.” Outokumpu I, 2017 WL 401951, at *4.
Based on that conclusion, the district court did not reach GE En-
ergy’s equitable estoppel argument. Id. at *1 n.1.
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17-10944 Opinion of the Court 5
We reversed, holding that there was no “agreement in writ-
ing” as required by the Convention on the Recognition and En-
forcement of Foreign Arbitral Awards (the “New York Conven-
tion” or “Convention”). Outokumpu II, 902 F.3d at 1325. We rea-
soned that Article II of the Convention mandated that an agree-
ment in writing be “signed by the parties.” Id. (quoting New York
Convention, Article II, ¶ 2). Accordingly, given that GE Energy was
“undeniably not a signatory to the Contracts,” we concluded that
GE Energy could not enforce the arbitration clauses, and that the
parties could not “contract around the Convention’s requirement
that the parties actually sign an agreement to arbitrate their dis-
putes in order to compel arbitration.” Id. at 1326 (emphasis in orig-
inal).
We further determined that GE Energy could not compel
arbitration through estoppel. Id. at 1326–27. We recognized that
Chapter 1 of the Federal Arbitration Act (“FAA”) allows for estop-
pel “because Chapter 1 does not expressly restrict arbitration to the
specific parties to an agreement.” Id. (citing Arthur Andersen LLP
v. Carlisle, 556 U.S. 624, 630–31 (2009)). But our view was that “the
Convention, as codified in Chapter 2 of the FAA, only allows the
enforcement of agreements in writing signed by the parties and
Congress has specified that the Convention trumps Chapter 1 of
the FAA where the two are in conflict.” Id. at 1326 (citing 9 U.S.C.
§ 208).
The Supreme Court reversed, holding “that the New York
Convention does not conflict with the enforcement of arbitration
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6 Opinion of the Court 17-10944
agreements by nonsignatories under domestic-law equitable estop-
pel doctrines.” Outokumpu III, 140 S. Ct. at 1648. The Supreme
Court reasoned that the Convention was “simply silent on the issue
of nonsignatory enforcement.” Id. at 1645. According to the Su-
preme Court, “[t]his silence is dispositive here because nothing in
the text of the Convention could be read to otherwise prohibit the
application of domestic equitable estoppel doctrines.” Id.
The Supreme Court specifically disagreed with our reading
of Article II of the Convention as requiring “that the parties actually
sign an agreement to arbitrate their disputes in order to compel ar-
bitration.” Outokumpu III, 140 S. Ct. at 1647–48 (emphasis in orig-
inal). According to the Supreme Court, the provisions in Article II
“address the recognition of arbitration agreements, not who is
bound by a recognized agreement. Article II(1) simply requires
contracting states to ‘recognize an agreement in writing,’ and Arti-
cle II(2) defines the term ‘agreement in writing.’” Id. at 1648. “Here,
the three agreements at issue were both written and signed,” satis-
fying Article II. Id.
The Supreme Court rounded off its opinion by noting that
since we had “concluded that the Convention prohibits enforce-
ment by nonsignatories, [we] did not determine whether GE En-
ergy could enforce the arbitration clauses under principles of equi-
table estoppel or which body of law governs that determination,”
adding that “[t]hose questions can be addressed on remand.” Id. at
1648. The Supreme Court remanded the matter to us “for further
proceedings consistent with this opinion.” Id.
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17-10944 Opinion of the Court 7
Justice Sotomayor authored a concurrence, emphasizing
that “[a]ny applicable domestic doctrines must be rooted in the
principle of consent to arbitrate.” Id. (Sotomayor, J., concurring).
Thus, in her view, parties “may not rely on domestic nonsignatory
doctrines that fail to reflect consent to arbitrate.” Id. But she also
observed, “I am skeptical that any domestic nonsignatory doctrines
need come into play at all, because Outokumpu appears to have
expressly agreed to arbitrate disputes under the relevant contract
with subcontractors like GE Energy.” Id. at 1649 n.*.
On remand, we ordered the parties to provide supplemental
briefing “addressing the impact of the Supreme Court’s decision,”
which they did. GE Energy argues that the Supreme Court elimi-
nated our premise that only signatories to the Contracts could en-
force arbitration. As such, GE Energy contends we may find that
GE Energy can compel arbitration as a non-signatory party. Alter-
natively, GE Energy maintains that it may compel arbitration un-
der the doctrine of equitable estoppel or as a third-party beneficiary
to the Contracts. Finally, GE Energy submits that Outokumpu for-
feited the application of German law by not raising it below, that
United States law applies in any event, and that German law allows
GE Energy to arbitrate, anyway.
Outokumpu argues that we should apply German law to the
question of arbitrability, and that German law does not recognize
the versions of equitable estoppel that GE Energy proposes. Alter-
natively, Outokumpu contends that GE Energy cannot compel ar-
bitration under either Alabama law or federal common law
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8 Opinion of the Court 17-10944
because arbitration is limited to disputes between “both parties” to
the Contracts, i.e., the signatories, and because GE Energy’s ver-
sions of equitable estoppel require an active arbitration and reli-
ance on the Contracts, neither of which is present here. Ou-
tokumpu also submitted the declaration of a German lawyer, who
opines on the question of equitable estoppel under German law.
II. Analysis
Although true that “[t]his case implicates domestic equitable
estoppel doctrines,” Outokumpu III, 140 S. Ct. at 1644, we need
not, and do not, resolve this case on those alternative grounds.
That is because while “GE Energy is undeniably not a signatory to
the Contracts,” Outokumpu II, 902 F.3d at 1326, it is equally unde-
niable that GE Energy is a defined party covered by the arbitration
clause.
The Contracts define parties to mean the Buyer and Seller
collectively, and the Seller is understood to include Fives and sub-
contractors, unless the contract states otherwise. The arbitration
clause broadly covers “[a]ll disputes arising between both parties in
connection with or in the performance of the [Contracts],” without
expressly excluding sub-contractors. Therefore, Outokumpu, the
Seller, expressly agreed to arbitrate disputes that arise with Fives
and sub-contractors. Based on this conclusion, we need not address
GE Energy’s alternative arguments based on the doctrines of equi-
table estoppel and third-party beneficiaries, nor do we need to un-
dertake a choice-of-law analysis or decipher German law.
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17-10944 Opinion of the Court 9
This case is readily distinguishable from Daphne Auto., LLC
v. E. Shore Neurology Clinic, Inc., 245 So. 3d 599 (Ala. 2017), the
case that Outokumpu relies on for its contention that the arbitra-
tion clauses do not extend to GE Energy. In Daphne, the arbitra-
tion provision stated that “Buyer/lessee and dealer agree that all
claims, demands, disputes or controversies of every kind or nature
that may arise between them” shall be settled by binding arbitra-
tion. Id. at 601 (emphasis in original). An individual employed by a
company hired his nephew and provided him a company car as part
of his compensation. Id. The car dealership agreed that the vehicle
would be titled in the nephew’s name, and the nephew was the
buyer/lessee under the sales contract. Id. When a dispute between
the company and the dealership arose, the Alabama Supreme
Court held that the dealership could not compel arbitration be-
cause the arbitration clause was limited, by its terms, to disputes
“between them”, i.e., the “buyer/lessee” (nephew) and the
“dealer[ship].” and “buyer/lessee” was not defined to include both
the nephew and the company that employed him. Id. at 605. Here,
GE Energy is a defined “party” and entitled to enforce the arbitra-
tion clauses contained in the Contracts.
Finally, our conclusion is entirely consistent with the Su-
preme Court’s opinion, and thus complies with the mandate. In
Outokumpu II, “our inquiry start[ed] and end[ed]” with our deter-
mination that “there is no agreement in writing within the mean-
ing of the Convention” because the Convention requires a party to
actually sign the agreement. Outokumpu II, 902 F.3d at 1326. The
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10 Opinion of the Court 17-10944
Supreme Court disagreed with that foundational premise. Ou-
tokumpu III, 140 S. Ct. at 1647–48. Our inquiry now continuing
past the “agreement in writing” factor, we agree with the district
court that Outokumpu simply agreed to arbitrate with GE Energy
per the contract’s plain terms.
III. Conclusion
Based on the foregoing, we AFFIRM the district court’s or-
der compelling arbitration.
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17-10944 TJOFLAT, J., Specially Concurring 1
TJOFLAT, Circuit Judge, Specially Concurring:
I agree with the Court’s outcome that GE Energy may com-
pel arbitration. But I take another well-traveled path to arrive to
that conclusion, one based on the mandate rule. For that reason, I
concur only in the Court’s judgment.
I.
In a nutshell, our panel opinion held that GE Energy, which
had not signed the international agreement that existed between
Outokumpu and Fives, could not compel arbitration against Ou-
tokumpu. We came to that conclusion based on the plain language
of the New York Convention, which allows one party to compel
arbitration against another when there is an “agreement in writ-
ing.” New York Convention, Article II, ¶ 2. We considered in the
alternative GE Energy’s argument that some version of equitable
estoppel would apply such that GE Energy could compel arbitra-
tion against Outokumpu as a nonsignatory to the agreement be-
tween Outokumpu and Fives. We rejected that argument on the
premise that estoppel doctrine could not contravene the plain lan-
guage of the New York Convention. We, therefore, reversed the
district court’s determination that GE Energy could compel arbi-
tration.
GE Energy filed a petition for writ of certiorari. The ques-
tion presented was, “Whether the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (the “New York Con-
vention”) permits a nonsignatory to an arbitration agreement to
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2 TJOFLAT, J., Specially Concurring 17-10944
compel arbitration based on the doctrine of equitable estoppel.”
Petition for Writ of Certiorari, GE Energy Power Conversion
France SAS, Corp. v. Outokumpu Stainless USA, LLC, 139 S. Ct.
2776 (2019) (No. 18-1048). And that question is exactly what the
Supreme Court addressed in GE Energy Power Conversion France
SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637
(2020). In short, the Supreme Court reversed us. The Supreme
Court held that although it is true that arbitration agreements must
be enforced when the provisions of Article II are met (i.e., when
there is an agreement in writing between the parties), arbitration
agreements may also be enforced by nonsignatories under domes-
tic law doctrines because “domestic doctrines [] fill gaps in the
[New York] Convention.” GE Energy, 140 S. Ct. at 1645. In other
words, the New York Convention is not the exclusive means by
which an international arbitration agreement may be enforced be-
cause domestic law doctrines that do not conflict with the Conven-
tion may apply. See id. And, the kicker, the Supreme Court ex-
plained, is that “the New York Convention does not conflict with
the enforcement of arbitration agreements by nonsignatories un-
der domestic-law equitable estoppel doctrines.” Id. at 1648.
Then, the Supreme Court sent the case back to us with a
clear directive:
Because the Court of Appeals concluded that the
Convention prohibits enforcement by nonsignato-
ries, the court did not determine whether GE Energy
could enforce the arbitration clauses under principles
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17-10944 TJOFLAT, J., Specially Concurring 3
of equitable estoppel or which body of law governs
that determination. Those questions can be addressed
on remand.
Id. (emphasis added). In my view, because the Supreme Court di-
rected us to address the equitable estoppel issue on remand, that’s
exactly (and only) what we should address in this opinion.
First, I will lay out why we must address equitable estoppel
in this remand. Second, I will address what body of law governs
the equitable estoppel determination. Third, I will analyze the eq-
uitable estoppel issue accordingly.
II.
The resolution of this case on remand is governed by the law
of the case doctrine and its more specific variant, the mandate rule.
See Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir. 1985). We
may not “alter, amend, or examine the mandate, or give any fur-
ther relief or review,” when the Supreme Court sends a case back
down to us. Id. at 1119. We must “implement both the letter and
the spirit of the mandate.” Id. To determine what the mandate is,
we must look at the Supreme Court’s decision “and the circum-
stances it embraces.” Id. And we are “bound to follow the [Su-
preme Court’s] holdings, both express and implied.” Id. In short,
when a party does not “raise [h]is challenge . . . before the Supreme
Court, and the Supreme Court remand[s] th[e] case for us to con-
sider” a specific issue, United States v. Neder, 197 F.3d 1122, 1124
n.1 (11th Cir. 1999), “we are limited to deciding only” what the Su-
preme Court has directed us to consider on remand, id. at 1131.
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4 TJOFLAT, J., Specially Concurring 17-10944
Applying the mandate rule to our case, our analysis should
be limited to whether GE Energy may compel arbitration under
the doctrine of equitable estoppel and what body of law should ap-
ply in making that determination. GE Energy, 140 S. Ct. at 1648.
The world of arguments is not our oyster on remand from the Su-
preme Court. So, for that reason, I would limit our review to eq-
uitable estoppel—the issue the Supreme Court remanded to us.
III.
Now, turning to the merits of the remand, we must first de-
cide what body of law governs our determination of whether GE
Energy, a third party which did not originally sign the agreement
between Outokumpu and Fives, may compel arbitration against
Outokumpu. Let me get it out of the way that German law will
govern the substantive issues in the case, as the choice of law pro-
vision in the contract between Outokumpu and Fives dictates. But
we aren’t dealing with the substantive issues in the appeal right
now. We are dealing with the threshold inquiry of arbitrability—
that is, whether GE Energy can compel arbitration against Ou-
tokumpu.
And the Federal Arbitration Act (“FAA”), which governs in-
ternational arbitrations like the one at issue in this case, “create[s]
a body of federal substantive law of arbitrability, applicable to any
arbitration agreement within the coverage of the Act.” Moses H.
Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.
Ct. 927, 941 (1983); see 9 U.S.C. § 208 (explaining that domestic law
under Chapter 1 of the FAA applies to New York Convention arbi-
trations to the extent that Chapter 1 does not conflict with Chapter
2 of the FAA (governing international arbitrations) or the New
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17-10944 TJOFLAT, J., Specially Concurring 5
York Convention itself); see also BG Grp., PLC v. Republic of Ar-
gentina, 572 U.S. 25, 34, 134 S. Ct. 1198, 1206 (2014) (“[C]ourts pre-
sume that the parties intend courts, not arbitrators, to decide what
we have called disputes about ‘arbitrability.’”).
Although this is a question of first impression in our Circuit,
I think all signs point to the conclusion that we must apply federal
common law in determining whether equitable estoppel applies in
New York Convention cases. Under Boyle v. United Technologies
Corporation, 487 U.S. 500, 506–07, 108 S. Ct. 2510, 2515 (1988), the
Supreme Court laid out a two-part test for determining whether
federal common law should apply over state law (or any other law
for that matter). First, we must decide whether there is a “uniquely
federal interest.” Id. at 507, 108 S. Ct. at 2516. Second, we must
determine whether “application of state law would ‘frustrate spe-
cific objectives’ of federal legislation.” Id. (internal citation omit-
ted).
Here, as to the first part of the test, we have a quintessential
“uniquely federal interest.” Boyle, 487 U.S. at 507, 108 S. Ct. at
2516. The New York Convention is an international treaty with
international obligations. The whole goal of the New York Con-
vention is to standardize the enforcement of international arbitra-
tion agreements, and there is a strong federal interest in making
sure that the United States lives up to its treaty obligations. See
Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15, 92 S. Ct. 2449,
2457 n.15 (1974) (“The goal of the Convention, and the principal
purpose underlying American adoption and implementation of it,
was to encourage the recognition and enforcement of commercial
arbitration agreements in international contracts and to unify the
standards by which agreements to arbitrate are observed and
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6 TJOFLAT, J., Specially Concurring 17-10944
arbitral awards are enforced in the signatory countries.”). As to the
second part of the test, allowing each state or international law to
impose its own test for threshold questions of arbitrability would
create an unmanageable tangle of arbitration law in the United
States, lead to forum shopping, and frustrate the uniform standards
the New York Convention and Chapter 2 of the FAA were enacted
to create. See also id. (“In their discussion of [Article II of the New
York Convention], the delegates to the Convention voiced fre-
quent concern that courts of signatory countries in which an agree-
ment to arbitrate is sought to be enforced should not be permitted
to decline enforcement of such agreements on the basis of paro-
chial views of their desirability or in a manner that would diminish
the mutually binding nature of the agreements.”).
In short, the Boyle test counsels in favor of applying federal
common law to threshold questions of arbitrability, which include
the application of equitable estoppel to GE Energy’s attempt to
compel arbitration as to Outokumpu. Cf. Setty v. Shrinivas
Sugandhalaya LLP, 3 F.4th 1166, 1168 (9th Cir. 2021) (“In cases in-
volving the New York Convention, in determining the arbitrability
of federal claims by or against nonsignatories to an arbitration
agreement, we apply ‘federal substantive law,’ for which we look
to the ‘ordinary contract and agency principles.’” (internal citation
omitted)); Certain Underwriters at Lloyd’s London v. Argonaut
Ins. Co., 500 F.3d 571, 576–77 (7th Cir. 2007) (“[S]upport grew, both
within and outside the United States, for a uniform, economical
and efficient means of resolving international commercial disputes
with American citizens and entities.”); Smith/Enron Cogeneration
Ltd. P’ship, Inc. v. Smith Cogeneration Intern., Inc., 198 F.3d 88, 96
(2d Cir. 1999) (“When we exercise jurisdiction under Chapter Two
of the FAA, we have compelling reasons to apply federal law,
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17-10944 TJOFLAT, J., Specially Concurring 7
which is already well-developed, to the question of whether an
agreement to arbitrate is enforceable.”).
IV.
Now, all that’s left is to apply the federal common law no-
tions of equitable estoppel to the facts of this case. Starting with
federal equitable estoppel principles, there are two circumstances
in which “a nonsignatory [may] compel arbitration.” MS Dealer
Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999), abro-
gated on other grounds by Arthur Andersen LLP v. Carlisle, 556
U.S. 624, 631, 129 S. Ct. 1896, 1902 (2009). The first is where “the
signatory to a written agreement containing an arbitration clause
‘must rely on the terms of the written agreement in asserting [its]
claims’ against the nonsignatory.” Id. (internal citation omitted).
The second is where the signatory “raises allegations of” collusive
misconduct between the nonsignatory and other signatories to the
contract. Id. GE Energy may compel arbitration under the first
circumstance because Outokumpu is relying entirely on its con-
tract with Fives to litigate against Fives’ subcontractor GE Energy.
Because GE Energy, a nonsignatory, is facing litigation as a result
of Outokumpu’s agreement with Fives, it may compel arbitration
in this circumstance.
So, I end up in the same spot as the Court. I just use equita-
ble estoppel to get there. For that reason, I concur in the judgment
only.