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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11080
____________________
GULFSTREAM AEROSPACE CORPORATION,
Plaintiff-Appellee,
versus
OCELTIP AVIATION 1 PTY LTD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:16-cv-00127-WTM-CLR
____________________
Before WILSON, ROSENBAUM, and ED CARNES, Circuit Judges.
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2 Opinion of the Court 20-11080
PER CURIAM:
Long story, short: if you want certain rules to apply to the
handling of your arbitration, the contract must say so clearly and
unmistakably. Otherwise, the Federal Arbitration Act (“FAA”) will
apply.
The parties here did not do that. So the FAA’s arbitral-award
standards for review govern. And because Defendant-Appellant
Oceltip Aviation 1 Pty Ltd. waived any argument under the FAA’s
arbitral-award standards that the arbitral award here should be va-
cated, the district court properly denied Oceltip’s application to va-
cate the award and granted Plaintiff-Appellee Gulfstream Aero-
space Corporation’s application to confirm the award. We there-
fore affirm the judgment of the district court.
I.
Gulfstream is a Georgia corporation based in Savannah, and
Oceltip is an Australian limited liability company. They entered
into a sales agreement (“Agreement”). Under that Agreement,
Gulfstream was to manufacture and sell a new G550 business jet
aircraft to Tinkler Gulfstream 650 Pty Ltd, Oceltip’s former name.
The Agreement, as amended, required Oceltip to pay $27.15 mil-
lion by January 15, 2013.
Though Oceltip paid Gulfstream about $7 million, it failed
to make the full $27.15 million payment on time. Nor did it pay
the required amount within the ten-day cure period allowed under
the Agreement. So Gulfstream terminated the Agreement.
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20-11080 Opinion of the Court 3
Not pleased with this result, Oceltip considered its options
under the Agreement. Within that contract, under the subheading
“Arbitration,” two clauses relevant to this appeal appear. The
first—Section 4.3.1—requires arbitration “by the American Arbi-
tration Association (“AAA”) in accordance with the provisions of
its Commercial Arbitration Rules . . . .” and specifies that “judg-
ment on the award rendered by the arbitrator(s) may be entered by
any court having jurisdiction thereof.” The second—Section
4.3.3—directs that the contract “shall be governed by the laws of
the State of Georgia, and the U.N. Convention on Contracts for the
International Sale of Goods . . . shall not apply, without reference
to rules regarding conflicts of law.”
In accordance with Section 4.3.1, Oceltip submitted a de-
mand for arbitration to the AAA. It sought a finding that Gulf-
stream had anticipatorily repudiated the Agreement, and that this
conduct suspended Oceltip’s duties, allowed Oceltip to recoup the
$7 million it had paid, and entitled Oceltip to damages. Oceltip also
sought a finding that the contract’s liquidated-damages provision—
Section 3.3.2—was a penalty and therefore unenforceable.
The liquidated-damages provision states that “[i]n the Event
of Default by [Oceltip], Gulfstream shall be entitled to [as relevant
here] . . . retain or collect, as liquidated damages and not as a pen-
alty,” $8 million. The amended Agreement reaffirms this under-
standing, specifying that “Gulfstream’s damages in the Event of
Default by Buyer will be difficult to ascertain, that the amounts
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4 Opinion of the Court 20-11080
agreed to as liquidated damages are a reasonable pre-estimate of
the probable loss, and that the Parties intend to provide for reason-
able liquidated damages and not a penalty.”
For its part, Gulfstream sought $8 million in liquidated dam-
ages under that provision, plus attorney’s fees and costs, from the
arbitration.
The arbitration hearing occurred in Savannah, Georgia. Fol-
lowing it, the three-member arbitration tribunal awarded Gulf-
stream liquidated damages totaling $8 million, plus attorney’s fees,
costs, and unreimbursed arbitration expenses. The panel denied
relief to Oceltip.
Gulfstream applied in the United States District Court for
the Southern District of Georgia to confirm the arbitration award.
Meanwhile, in the Superior Court of Chatham County, Georgia,
Oceltip sought to vacate the arbitration award.
Gulfstream removed Oceltip’s state-court proceeding to the
Southern District of Georgia. On Gulfstream’s motion, the district
court ordered the two cases consolidated.
Oceltip moved to remand, challenging the district court’s
subject-matter jurisdiction. It argued that, based on the choice-of-
law clause in Section 4.3.3, the Agreement incorporated the Geor-
gia Arbitration Code, and that provided for exclusive jurisdiction
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20-11080 Opinion of the Court 5
in the Georgia state courts. In opposition, Gulfstream contended
that the FAA authorized federal jurisdiction.
The parties also briefed their respective applications to con-
firm and vacate the arbitration award. In their briefing, the parties
disputed whether federal law (the FAA) or state law (the Georgia
Arbitration Code) supplied the standards governing whether the
arbitrators’ decision should be vacated or confirmed. And if the
Georgia Arbitration Code governed the standards, the parties disa-
greed over whether the arbitrators had manifestly disregarded the
law.
The district court denied Oceltip’s motion to remand,
granted Gulfstream’s application to confirm the arbitration award,
and denied Oceltip’s application to vacate it. After holding that it
had jurisdiction over the dispute, the court determined that the
FAA’s standards for vacatur applied to its decision. But even as-
suming the Georgia Arbitration Code’s standards applied, the court
concluded, Oceltip had not shown that the arbitrators manifestly
disregarded the law.
Oceltip timely appealed. 1 On appeal, Oceltip again asserts
that federal jurisdiction is lacking. It also argues that the district
court erred in confirming the arbitration award and denying
1 Although this case was originally scheduled for oral argument, Oceltip
moved to submit it on the briefs, and Gulfstream did not oppose. We granted
that motion.
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6 Opinion of the Court 20-11080
vacatur because, in Oceltip’s view, the Georgia Arbitration Code’s
standards for vacatur—not the FAA’s—govern, and the arbitrators
manifestly disregarded the law.
II.
We begin with jurisdiction—because if we lack that, of
course, we cannot consider the merits and must dismiss the appeal.
We review our subject-matter jurisdiction de novo. Inversiones y
Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH,
921 F.3d 1291, 1298 n.8 (11th Cir. 2019).
On appeal, Oceltip does not suggest that this matter does
not satisfy the requirements for federal-court jurisdiction. Nor
could it do so successfully. As we describe below, we have juris-
diction under Chapter 2 of the FAA.
To explain our jurisdiction, we start with a little back-
ground. In 1970, the United States acceded to the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards, also
called the “New York Convention.” Indus. Risk Insurers v. M.A.N.
Gutehoffnungshutte GmbH, 141 F.3d 1434, 1440 (11th Cir. 1998).
The Convention’s purpose “is to encourage the recognition and
enforcement of international arbitral awards to relieve congestion
in the courts and to provide parties with an alternative method for
dispute resolution that is speedier and less costly than litigation.”
Id. (cleaned up).
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The same year that the United States acceded to the Con-
vention, Congress enacted Chapter 2 of the FAA, codified at 9
U.S.C. §§ 201–208. That chapter incorporates the Convention into
federal law, “mandat[ing] the enforcement of the New York Con-
vention in United States courts.” Indus. Risk, 141 F.3d at 1440. To
facilitate that, Chapter 2 creates “original subject-matter jurisdic-
tion over any action arising under the Convention.” Id. Indeed, 9
U.S.C. § 203 states that “[a]n action or proceeding falling under the
convention shall be deemed to arise under the laws and treaties of
the United States.” And it directs that “[t]he 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.
We have construed Chapter 2 as extending to all arbitral
awards not “entirely between citizens of the United States.” Indus.
Risk, 141 F.3d at 1440–41; see also 9 U.S.C. § 202 (stating that arbi-
tral awards “arising out of [a commercial] relationship which is en-
tirely between citizens of the United States” fall outside the Con-
vention). The arbitral award here—which concerns a contract for
the sale of an aircraft—arises out of the commercial relationship
between Gulfstream and Oceltip. As we have mentioned, Oceltip
is an Australian company, and Gulfstream is a United States corpo-
ration. So their relationship is not “entirely between citizens of the
United States,” and the exception to Convention jurisdiction does
not apply.
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8 Opinion of the Court 20-11080
We have also held that §§ 203 and 205 confer subject-matter
jurisdiction over arbitration vacatur actions removed from state
court, Inversiones, 921 F.3d at 1299–1300, and § 203 endows federal
courts with jurisdiction over actions to confirm an arbitral award,
see Escobar Celebration Cruise Operator, Inc., 805 F.3d 1279, 1286
(11th Cir. 2015); see also 9 U.S.C. § 207. So there’s really no dispute
that federal law provides for jurisdiction over this action.
Perhaps for that reason, Oceltip argues instead that the
Agreement’s choice-of-law provision eradicates our otherwise-ex-
isting jurisdiction. Oceltip relies on Sections 4.3.1 and 4.3.3 of the
Agreement in support of this position. As a reminder, Section 4.3.1
states that “judgment on the award rendered by the arbitrator(s)
may be entered by any court having jurisdiction thereof.” And Sec-
tion 4.3.3 provides that “[t]his contract shall be governed by the
laws of the State of Georgia, . . . without reference to rules regard-
ing conflicts of law.” Oceltip reads these two provisions together
to deprive the federal courts of jurisdiction. In Oceltip’s view, un-
der the contract, the Georgia Arbitration Code governs jurisdic-
tion, and under it, “only state superior courts have jurisdiction to
confirm and vacate arbitration awards.”
We disagree. Even assuming without deciding (at this
point) that the Agreement’s choice-of-law clause incorporates the
Georgia Arbitration Code, state law cannot strip a federal court of
federal jurisdiction. Barrow S.S. Co. v. Kane, 170 U.S. 100, 111
(1898) (“The jurisdiction so conferred upon the national courts
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20-11080 Opinion of the Court 9
cannot be abridged or impaired by any statute of a state.”). As
Oceltip’s mistaken argument is the only basis for its contention that
we lack jurisdiction, and we have otherwise established our juris-
diction under § 203 of the FAA, we proceed to the merits.
III.
Next, Oceltip argues that the district court wrongly refused
to vacate and incorrectly confirmed the arbitral award. We review
the court’s underlying legal conclusions de novo and its findings of
fact for clear error. Bamberger Rosenheim, Ltd., (Israel) v. OA
Dev., Inc., (United States), 862 F.3d 1284, 1286 (11th Cir. 2017).
More specifically, Oceltip contends that the Agreement’s
choice-of-law provision incorporated all Georgia law—including
the Georgia Arbitration Code and its standards. In contrast, Gulf-
stream argues that while Georgia law governs resolution of the
merits of the dispute, the federal standards (meaning the FAA’s
standards) control our review of the arbitral award.
Resolution of this disagreement determines whether arbitra-
tors’ “manifest disregard of the law” supplies a basis for vacating
the award. 2 Ga. Code Ann. § 9-9-13(b)(5). Under the Georgia
2 Because it makes no difference to the outcome here (and the parties did not
brief the issue), we assume without deciding that parties can agree to standards
for review of the arbitral award that differ from federal standards (meaning
the standards that the FAA imposes). But see Bowen v. Amoco Pipeline Co.,
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10 Opinion of the Court 20-11080
Arbitration Code, it does. But federal law—the New York Conven-
tion and its implementing statute (Chapter 2 of the FAA)—sets
forth seven exclusive grounds for vacatur. Indus. Risk, 141 F.3d at
1446; see Inversiones, 921 F.3d at 1302. They do not include “man-
ifest disregard of the law.” See M & C Corp. v. Erwin Behr GmbH
& Co., KG, 87 F.3d 844, 848 (6th Cir. 1996).
Before the district court, and now on appeal, Oceltip has not
argued that any of the New York Convention’s enumerated
grounds for vacatur apply. So if the Agreement’s choice-of-law
clause does not displace the federal standards, then without further
analysis, we will confirm the award. See Sapuppo v. Allstate Flo-
ridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (holding that is-
sues not raised in briefing on appeal are abandoned and therefore
waived or forfeited). Alternatively, if the Georgia Arbitration
Code’s standards do apply, then the parties dispute whether the ar-
bitrators manifestly disregarded the law in analyzing the Agree-
ment’s liquidated damages clause. As it turns out, we need not
reach the alternative issue because we conclude that the Agree-
ment’s choice-of-law provision does not supplant federal standards
for confirmation or vacatur of an arbitral award.
The Supreme Court has described Section 2 of the FAA, 9
U.S.C. § 2, as “a congressional declaration of a liberal federal policy
254 F.3d 925, 934–36 (10th Cir. 2001) (holding that parties cannot agree to ex-
panded judicial review, beyond what the FAA permits, of an arbitral award).
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favoring arbitration agreements, notwithstanding any state sub-
stantive or procedural policies to the contrary.” Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). But
the Supreme Court has recognized that this policy is grounded in a
theory of consent. See Volt Info. Scis., Inc. v. Bd. of Trs. of Leland
Stanford Jr. Univ., 489 U.S. 468, 479 (1989). So parties may “specify
by contract the rules under which [an agreed] arbitration will be
conducted.” Id.
We look first to the plain meaning of the contractual lan-
guage to ascertain the parties’ intent about whether the FAA or the
Georgia Arbitration Code standards of review govern. See Inter-
naves de Mex. s.a. de C.V. v. Andromeda Steamship Corp., 898
F.3d 1087, 1093 (11th Cir. 2018) (stating general common law of
contracts). Here, despite Oceltip’s insistence to the contrary, the
plain language of the Agreement does not support Oceltip’s posi-
tion.
Oceltip points to the language that “[t]his contract shall be
governed by the laws of the State of Georgia, . . . without reference
to rules regarding conflicts of law.” It notes that these words ap-
pear in the portion of the Agreement labeled “Arbitration” and
urges that this text necessarily means that the parties agreed that
the Georgia Arbitration Code governs the standards of review of
the arbitral award (as opposed to Georgia law’s application to only
the merits of the arbitration).
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We disagree. The context in which the quoted language ap-
pears is important. Restored to its relevant context, the quoted
sentence says, “This contract shall be governed by the laws of the
State of Georgia, and the U.N. Convention on Contracts for the
International Sale of Goods [“CISG”] . . . shall not apply, without
reference to rules regarding conflicts of law.”
First, this passage indicates that “without reference to rules
regarding conflicts of law” refers to any decision between the ap-
plicability of the CISG, on the one hand, and another body of law—
such as Georgia law—on the other, that might have been required
in the absence of the provision. In other words, the parties chose
for Georgia law, not the CISG, to govern the contract, regardless
of whether conflicts-of-law analysis would have favored applica-
tion of the CISG.
Second, the provision’s comparison of Georgia law to the
CISG is instructive. The CISG does not establish standards for the
review of arbitral awards; it is a set of “uniform rules which govern
contracts for the international sale of goods,” see CISG, at Pream-
ble. So if the CISG had applied instead, it couldn’t have supplied
standards for review of the arbitral award. And the Agreement’s
contrast of the CISG with the laws of the State of Georgia indicates
that the parties viewed Georgia law and the CISG to serve the same
function in construing the Agreement. To put a finer point on it,
because the CISG could not have provided standards for the review
of the arbitral award, the clause suggests that the parties did not
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20-11080 Opinion of the Court 13
intend for Georgia law to supply standards for review of the arbitral
award.
Third, Section 4.3.1 of the Agreement requires arbitration
“by the American Arbitration Association (“AAA”) in accordance
with the provisions of its Commercial Arbitration Rules.” So the
parties at least implicitly chose not to have the Georgia Arbitration
Code cover the arbitration itself. Indeed, the Georgia Arbitration
Code is not mentioned once in the Agreement. Given that the par-
ties specified arbitration rules—and those rules weren’t the Geor-
gia Arbitration Code—it makes little sense that the parties would
have intended and expected that the Georgia Arbitration Code
nonetheless would govern review of any award resulting from ar-
bitration.
So Oceltip next urges that Volt, 489 U.S. 468, as “affirm[ed]”
by Mastrobuono v. Shearson Lehman Hutton, 514 U.S. 52 (1995),
Appellant’s Br. at 39, requires us to conclude that the Agreement
demonstrates that the parties chose to be governed by the Georgia
Arbitration Code in the conducting of the arbitration. We are not
persuaded.
In Volt, Volt and Stanford University entered into a con-
struction contract. 489 U.S. at 470. The contract specified that it
would be governed by “the law of the place where the project is
located,” id. at 472, and it included an agreement to arbitrate all
disputes between the parties “arising out of or relating to this con-
tract or the breach thereof,” id. at 470. When a dispute between
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the parties arose, Volt made a formal demand for arbitration. Id.
In response, Stanford filed suit against Volt in California state court,
alleging breach of contract and fraud. Id. at 470–71. Stanford also
sought indemnity from other companies involved in the construc-
tion project, with whom they had no arbitration agreements. Id.
at 471. Faced with Stanford’s suit, Volt sought for the California
court to compel arbitration. Id. And Stanford responded by mov-
ing to stay arbitration under California law, which provided for a
party to do so pending resolution of related litigation between a
party to the arbitration agreement and third parties not bound by
it, under circumstances applicable there. Id.
The California trial court denied Volt’s motion to compel
and stayed the arbitration proceedings until resolution of the litiga-
tion. Id. And the California appellate court affirmed. Id. It held
that, by stating that the contract would be governed by “the law of
the place where the project is located,” the parties had incorporated
the California rules of arbitration into their arbitration agreement.
Id. at 472. The Supreme Court affirmed. Id. at 473.
Oceltip suggests that the Agreement’s Georgia-law provi-
sion, similarly to how the contract clause in Volt permitted state
arbitration procedural rules to be applied, requires application of
state arbitration review standards instead of FAA review standards.
Oceltip is mistaken.
First, as the Supreme Court explained six years later in Mas-
trobuono,Volt’s procedural posture was integral to the Court’s
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decision there. Mastrobuono, 514 U.S. at 60 n.4. In Volt, the Su-
preme Court received the case on review from the California Su-
preme Court, which had already construed its own state law. See
id. So the Court deferred to the state court’s construction of its
own state law and did not interpret the contract there de novo. Id.
But here, as in Mastrobuono, see id., we review a federal court’s
interpretation of the governing contract. And as we have ex-
plained, our de novo review of the choice-of-law provision here
does not support the notion that the parties agreed that the Georgia
Arbitration Code would govern the standards of review of the ar-
bitral award.
Second, we disagree with Oceltip that Mastrobuono some-
how suggests that Volt’s rule applies here. Just the opposite.
In Mastrobuono, Shearson Lehman and the Mastrobuonos
entered into a contract for the Mastrobuonos to trade securities.
See 514 U.S. at 54. The contract included an arbitration clause and
a choice-of-law provision, which stated that the contract “shall be
governed by the laws of the State of New York.” Id. at 58–59. The
next sentence stated that “any controversy” arising out of the trans-
actions between the parties “shall be settled by arbitration” in ac-
cordance with the rules of the National Association of Securities
Dealers (“NASD”), or the Boards of Directors of the New York
Stock Exchange, or the American Stock Exchange. Id. at 59.
When things went south and the parties arbitrated, the arbi-
tration panel there awarded the Mastrobuonos, among other relief,
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16 Opinion of the Court 20-11080
punitive damages. Id. at 54. But Shearson Lehman contended that
the choice-of-law provision precluded the award of punitive dam-
ages under New York arbitration rules (because arbitration panels
in New York could not award punitive damages), so it sought in
federal district court to vacate that aspect of the award. Id. at 54–
55. Based on their mistaken understanding of Volt, the district and
circuit courts in Mastrobuono concluded that New York’s arbitra-
tion rules governed the arbitration. See Mastrobuono v. Shearson
Lehman Hutton, Inc., 812 F. Supp. 845, 848 (N.D. Ill. 1993); Mas-
trobuono v. Shearson Lehman Hutton, Inc., 20 F.3d 713, 717 (7th
Cir. 1994).
The Supreme Court reversed. 514 U.S. at 55. It first re-
viewed the choice-of-law provision. See id. at 59–60. After consid-
ering the plain meaning of that provision, the Supreme Court de-
termined that the clause was “not, in itself, an unequivocal exclu-
sion of punitive damages claims.” Id. at 60. Then it turned to the
arbitration provision. See id. The Court concluded that, rather
than support Shearson Lehman’s position that New York arbitra-
tion rules applied, the arbitration clause “strongly implie[d] that an
arbitral award of punitive damages [wa]s appropriate [because] [i]t
explicitly authorize[d] arbitration in accordance with NASD rules,”
and “NASD’s Code of Arbitration Procedure indicate[d] that arbi-
trators may award ‘damages and other relief.’” Id. at 60–61. Ulti-
mately, the Court reasoned that, “[a]t most, the choice-of-law
clause introduce[d] an ambiguity into an arbitration agreement
that would otherwise allow punitive damages awards.” Id. at 62.
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But that was not enough for the Court to conclude that New York
arbitration rules governed. See id.
The Court also concluded that “the best way to harmonize
the choice-of-law provision with the arbitration provision [was] to
read ‘the laws of the State of New York’ to encompass substantive
principles that New York courts would apply, but not to include
special rules limiting the authority of arbitrators.” 3 Id. at 63–64.
Mastrobuono is not materially distinguishable from
Oceltip’s case. Indeed, the Agreement’s clause stating that it “shall
be governed by the laws of the State of Georgia” is distinguishable
from the provision in Mastrobuono that said that the contract there
“shall be governed by the State of New York” only in that the clause
in the Agreement further specifies that the CISG shall not control
the Agreement. But as we have explained, that distinction makes
the case stronger for application of federal standards of arbitral-
award review. And as with the arbitration provision in Mastro-
buono, the arbitration clause here can be harmonized with the
choice-of-law provision to give effect to both: “the choice-of-law
provision covers the rights and duties of the parties, while the arbi-
tration clause covers arbitration; neither sentence intrudes upon
the other.” Id. at 64. In sum, then, the Agreement does not evi-
dence a clear intent by the parties that the Georgia Arbitration
3 In addition, the Court explained that Shearson Lehman had drafted the con-
tract, so ambiguities were to be construed against it. Mastrobuono, 514 U.S.
at 62. But that served as a separate rationale for the Court’s decision.
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18 Opinion of the Court 20-11080
Code—as opposed to federal arbitral-award vacatur standards—
control.
One final note: our decision today puts us in good company.
All eight other Circuits that have opined on the proper reading of
Volt and Mastrobuono have concluded, as we do, that Volt has no
application when, as here, a federal court reviews contractual lan-
guage de novo. See, e.g., PaineWebber, Inc. v. Elahi, 87 F.3d 589,
594 n.5 (1st Cir. 1996); Nat’l Union Fire Ins. Co. v. Belco Petroleum
Corp., 88 F.3d 129, 134 (2d Cir. 1996); Roadway Package Sys., Inc.
v. Kayser, 257 F.3d 287, 295 (3d Cir. 2001), abrogated on other
grounds by Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576
(2008); Porter Hayden Co. v. Century Indem. Co., 136 F.3d 380,
383 n.6 (4th Cir. 1998); Action Indus., Inc. v. U.S. Fid. & Guar. Co.,
358 F.3d 337, 342 n.15 (5th Cir. 2004); Ferro Corp. v. Garrison In-
dus., Inc., 142 F.3d 926, 936 (6th Cir.1998); UHC Mgmt. Co., Inc. v.
Comput. Scis. Corp., 148 F.3d 992, 996 (8th Cir. 1998); Wolsey, Ltd.
v. Foodmaker, Inc., 144 F.3d 1205, 1212–13 (9th Cir. 1998). In
short, the district court correctly determined that the FAA’s review
standards govern here.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED.