dissenting:
I believe that we have jurisdiction to review this remand order and that the remand was in error. Accordingly, I respectfully dissent.
I.
In deciding whether 28 U.S.C. § 1447(d) deprives us of jurisdiction to review a remand order, our focus must be on what the district court actually did, and not just on what it says it did.
[Pjowerful policy considerations and persuasive decisional authority support our power — and responsibility — to look past contextually ambiguous allusions and even specific citations to § 1447(c) to determine by independent review of the record the actual grounds or basis upon which the district court considered it was empowered to remand....
[Here], despite evident confusion and some backing and filling during the process, the district court remanded in the end not on the assumption that there was a “lack of jurisdiction” so that a remand was compelled, but that though there was jurisdiction, there was discretion to remand. It is settled that when a district court remands on such a basis, § 1447(d) does not bar appellate review.
Mangold v. Analytic Services, Inc., 77 F.3d 1442, 1450-1451 (4th Cir.1996). See also Quackenbush v. Allstate Insurance Co.; — U.S. —, —, 116 S.Ct. 1712, 1718-1720, 135 L.Ed.2d 1 (1996) (abstention-based remands are appealable “collateral orders”).
The majority exaggerates the “clarity” of the district court’s 'written order. Here is that order in its entirety, with my emphasis added:
For the reasons stated on the record in open court after a hearing on December 13, 1995, this Court concludes that the removal of this action was demonstrably improvident, and that therefore subject matter jurisdiction is lacking in this case. The Court expresses no view as to whether further proceedings in state court might disclose a plausible basis for the removal of this action to federal court pursuant to 9 U.S.C. § 205 (authorizing removal “at any time before the trial thereof’ of any ease involving [an] international commercial dispute subject to [the] “Convention on the Recognition and Enforcement of Foreign Arbitral Awards”). Accordingly, it is this 14th day of December, 1995, by the United States District Court for the District of Maryland, ORDERED:
1) That this case is REMANDED, without prejudice, to the Circuit Court for Baltimore City, for lack of jurisdiction;
2) That the CLERK of the court CLOSE this ease;
3) That the CLERK of the court MAIL copies of this order to counsel of record.
Thus, the district court invited scrutiny of its remarks in open court, and it “expresse[d] no view” about whether there actually is an agreement to arbitrate subject to the Convention.
The hearing had been scheduled to resolve competing motions concerning a discovery deadlock. At the hearing, the district court abruptly changed the subject to whether the case should be remanded immediately, without resolving the question of arbitrability. Counsel for Severonickel expressed doubts:
[Mr. DUNNE, counsel for Severonickel:] Let me begin, if you don’t mind, with the last thing you and Mr. Jaffe [counsel for Reymenants/Kola] were discussing, and I *270am not trying to be flipfpant], but it may be the only thing that Mr. Jaffe and I seem to agree on because I am inclined to agree with his point of view on the question of his right to a trial and the obligation of the federal court in circumstances like this to have a trial, if there are legitimate disputes of fact, on the question of whether or not a contract to arbitrate exists.
And there is a very clear dispute on that. Mr. Jaffe says there was and points to a couple of things. We say there was not and say that those things don’t apply to this particular arrangement. And there are clear, sharp disputes of fact. If when we are applying conventional summary judgment standards, I think it would be difficult on the record before us at this point, which ... doesn’t even include the Tolling agreement, to rule one way or the other. And I think the statute does grant jurisdiction to the federal court, and indeed requires the federal court to exercise jurisdiction at a minimum to decide the question of whether there is a contract—
THE COURT: You read the statute to require the federal court to exercise jurisdiction to the extent of having a trial?
MR. DUNNE: On the very narrow issue, is there an agreement—
THE COURT: On the issue of whether there is an agreement to arbitrate?
MR. DUNNE: Written agreement to arbitrate.
A few moments later, counsel reiterated:
So Mr. Jaffe and I agree on this point. If there is a disputed fact on that, it would perhaps be error for the Court to decline to resolve it. And if it requires discovery, both sides should have access to it.
Nonetheless, the district court declined to resolve the arbitrability issue:
[H]ere we sit a year ... after the case has been filed when apparently, according to [Severonickel’s] argument, the matter was moving to a posture in state court where things were going to start happening on the merits. And when I say the merits, I mean a decision was going to be made whether or not this case is one for judicial determination or arbitral determination. And so all of these factors, it seems to me, suggest[ ] that we don’t throw open the federal courts on this kind of basis for use by a party not in any manner [ajffected with the federal interest to employ the courts in its processes through some tactical strategic way to gain advantage in litigation.
And so I sit here as a judge, a trustee of a precious public resource, this courtroom, that must be available to all litigants, however far they come to get here who properly are here. And Congress has made it very clear. I don’t see anything in the cases or in the statute affording this rather curious open-ended removal right to suggest we are to throw open the doors to the federal courts for this kind of use on these kinds of facts. And I suggest that my earlier observation that the fact of the matter is discovery is going to take place in this case. It is either going to take place in federal court or state court. If in fact, despite Mr. Jaffe’s legitimate concerns about such things, it turns out that [Severonickel] is bound by that arbitration provision, what is going to happen is that the case is either going to go to arbitration from state court or it will take a short and quick detour back to this court and then go to arbitration.
Later, the court mused that “federal jurisdiction, frankly, doesn’t seem close on the record as it now exists,” but “[t]hat is not to say that when discovery is completed, in fact there won’t be a determination properly made that indeed [Severonickel] is bound by this secret arbitration agreement[.]”
Though counsel for the parties continued to attempt to dissuade the district court, the court stated that it believed it had the discretion to remand the case.1 The court announced that it intended to remand, and the *271short written order already quoted was entered.
On the whole record, I think it quite clear that the court declined to exercise jurisdiction in its discretion, i.e. it abstained. Ab-stentionbased remands are appealable “collateral orders.” Quackenbush, — U.S. at —-—, 116 S.Ct. at 1718-1720.
II.
I now turn to the merits of the remand order. Because of the peculiar interplay between arbitrability and jurisdiction here, several of the points already discussed are again relevant.
Under the Federal Arbitration Act, a district court that would otherwise have jurisdiction under Title 28 over litigation between the parties may, on application of one of them, enter an order compelling arbitration. If the arbitrability of the dispute is at issue— on either the ground that the parties have no arbitration agreement or that the dispute is not within the agreement’s scope — “the court shall proceed summarily to the trial thereof.” 9 U.S.C. § 4 (emphasis added).
Ordinarily, there is no jurisdiction in federal court over an action between foreign entities. However, if the parties have agreed to arbitrate the dispute, the Convention applies, and Congress has provided a federal forum:
An action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States. The district courts of the United States ... shall have original jurisdiction over such an action or proceeding, regardless of the amount in controversy.
9 U.S.C. § 203. Furthermore, there is a broad provision allowing for the removal of suits brought in state court, even those, like this one, in which a good deal of litigation has already taken place:
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 or the defendants may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States for the district and division embracing the place where the action or proceeding is pending. The procedure for removal of causes otherwise provided by law shall apply, except that the ground for removal provided in this section need not appear on the face of the complaint but may be shown in the petition for removal....
9 U.S.C. § 205. Finally, the general provisions of the Federal Arbitration Act apply to actions under the Convention except where they conflict with it. 9 U.S.C. § 208.
Kola/Reymenants argues that 9 U.S.C. § 4 therefore applies, and the district court must exercise jurisdiction to determine whether the dispute is subject to arbitration. As I quoted in the fact section above, Severonickel agreed with this position below. It now has “seen the light.” Severonickel now argues that because the district court would not otherwise have jurisdiction of the suit under Title 28, it need not decide arbitrability.2 This ends up being a chicken-and-egg problem. If the dispute is subject to the Convention, then 9 U.S.C. § 203 provides that it arises under the laws and treaties of the United States, i.e. there is federal question jurisdiction. If the dispute is not subject to the Convention, there is no such jurisdiction. In other words, unlike the typical Federal Arbitration Act case, arbitrability is the basis for jurisdiction.
Consequently, it cannot be said that the district court has jurisdiction under Title 28 until it is first decided that the dispute is arbitrable, but 9 U.S.C. § 4 would literally require this jurisdiction to be present before the court decides arbitrability.
I think that the only way to harmonize these statutes in a way that makes any sense is to require the district court to decide arbitrability, i.e. to recognize that it has the mandatory jurisdiction to examine its own jurisdiction. The Convention, at 9 U.S.C. § 208, incorporates the provisions of the Arbitration Act “to the extent that [they are] not in conflict” with it. I would deem § 4’s requirement of a federal jurisdictional basis *272independent of arbitrability to be just such a conflict.
I would vacate the order of the district court and remand with instructions to permit discovery on and resolve the question of arbi-trability.
. The court stated:
[Counsel] are suggesting that I don’t have the discretion to [remand] short of discovery, and I am suggesting to you that I very much have the discretion to determine on a case-by-case basis the propriety under this peculiar provision of the removal law whether that discovery will take place in this court or in state court.
. The majority espouses this position in dicta. Supra at 268 n. 4.