CHINA MINMETALS MATERIALS IMPORT AND EXPORT CO., LTD.
CHI MEI CORPORATION,
On Appeal from the United States District Court for the District of New Jersey
(D.C. Civ. No. 01-03481)
Honorable Dennis M. Cavanaugh, District Judge
Argued April 7, 2003
BEFORE: ALITO, FUENTES, and GREENBERG, Circuit Judges
(Filed: June 26, 2003)
ALITO, Circuit Judge, concurring:
I join the Court's opinion but write separately to elaborate on the importance of Article IV, Section 1(b) of the Convention in this case. As the Court notes, "the crucial principles . . . that arbitration is a matter of contract and that a party can be forced to arbitrate only those issues it specifically agrees to submit to arbitration . . . suggest that the district court here had an obligation to determine independently the existence of an agreement to arbitrate." Opinion of the Court at 14. These principles find expression in Article IV, Section 1(b), which provides that a party seeking to enforce an arbitral award must, "at the time of the application, supply . . . [t]he original agreement referred to in article II or a duly certified copy thereof." Convention at art. IV, § 1(b). Because a party seeking to enforce an arbitral award cannot satisfy this obligation by proffering a forged or fraudulent agreement, this provision required the District Court to hold a hearing and make factual findings on the genuineness of the agreement at issue here. Article IV, Section 1(b), as noted, requires a party seeking enforcement to supply the court with "[t]he original agreement referred to in article II," and it is apparent that this means that the party seeking enforcement must provide the court with either a duly signed written contract containing an arbitration clause or an agreement to arbitrate that is evidenced by an exchange of letters or telegrams. Article II provides as follows:
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. Id. at art. II (emphasis added). Article II thus refers to an "agreement" on three occasions: (1) when discussing the obligation of each "Contracting State" to "recognize an agreement in writing"; (2) in defining an "agreement in writing"; and (3) in requiring the court in which enforcement is sought to compel arbitration when the parties "have made an agreement within the meaning of " Article II. Both the first and second references concern an "agreement in writing," and the third reference merely directs the reader to a definition of "agreement" set forth elsewhere in Article II. Since an "agreement in writing" is the only type of "agreement" discussed in Article II, it seems clear that an "agreement referred to in article II" means an "agreement in writing" as defined in that Article. Thus, a party seeking enforcement of an arbitral award under Article IV must supply the court with an "agreement in writing" within the meaning of Article II. An "agreement in writing," Article II tells us, means "an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams." Id. at art. II, § 2.
To enforce the award granted by the arbitral tribunal, Minmetals was therefore required to demonstrate to the District Court that it and Chi Mei had agreed to arbitrate any dispute arising out of the purported nickel contracts and that they had done so by means of either (1) a written contract signed by both parties or (2) an exchange of letters or telegrams between them. Since Minmetals does not contend that Chi Mei agreed to arbitrate disputes relating to the purported nickel contracts by way of an exchange of letters or telegrams, it follows that Minmetals was required to prove to the District Court that Chi Mei signed a written agreement to arbitrate the dispute adjudicated by the arbitral tribunal. Chi Mei specifically disputes this issue, claiming that the signatures of its officers on the purported nickel contracts were forged. As a result, the Convention required the District Court to inquire into whether Chi Mei's officers signed the purported nickel contracts.
Minmetals contends, however, that where an arbitral tribunal has already determined that the parties entered into a written agreement to arbitrate their dispute, the Convention requires the District Court to assume that the tribunal's determination was correct. Minmetals's reading of the Convention, however, would render the prerequisites to enforcement of an award set forth in Article IV superfluous. It is well established that " 'courts should avoid a construction of a statute that renders any provision superfluous.' " United Steelworkers of Am. v. North Star Steel Co., 5 F.3d 39, 42 (3d Cir. 1993) (quoting Pennsylvania v. United States Dept. of Health and Human Servs., 928 F.2d 1378, 1385 (3d Cir. 1991)). If Minmetals's reading were correct, there would be no purpose for Article IV, Section 1(b)'s requirement that a party "applying for recognition and enforcement" of an arbitral award supply the court with the parties' signed, written agreement or exchange of letters or telegrams. On Minmetals's view, the existence of a valid agreement would be conclusively established once the party seeking enforcement pointed out the portion of the arbitral tribunal's decision in which it found that the parties had entered into a written agreement to arbitrate, and therefore Minmetals's position would make the Convention's requirement that the party seeking enforcement submit the original agreement a meaningless formality.
The better reading of Article IV - which comports with fundamental principles of arbitration - requires that the party seeking enforcement both (1) supply a document purporting to be the agreement to arbitrate the parties' dispute and (2) prove to the court where enforcement is sought that such document is in fact an "agreement in writing" within the meaning of Article II, Section 2. In the present case, accordingly, Minmetals was required to demonstrate to the District Court that an officer of Chi Mei signed the purported nickel contracts. Because the District Court ordered the award enforced without requiring Minmetals to make that showing, its decision must be vacated.