University of Notre Dame (USA) v. TJAC Waterloo, LLC, et al
Filing
OPINION issued by Sandra L. Lynch, Appellate Judge; David H. Souter,* Associate Supreme Court Justice and Bobby R. Baldock,** Appellate Judge. Published. * Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. ** Hon. Bobby R. Baldock, Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation. [16-1397]
Case: 16-1397
Document: 00117172098
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Date Filed: 06/28/2017
Entry ID: 6102598
United States Court of Appeals
For the First Circuit
No. 16-1397
THE UNIVERSITY OF NOTRE DAME (USA) IN ENGLAND,
Plaintiff, Appellee,
v.
TJAC WATERLOO, LLC; ZVI CONSTRUCTION CO., LLC,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Baldock, Circuit Judge.**
John W. DiNicola, II, with whom DiNicola, Seligson & Upton,
LLP was on brief, for appellant TJAC Waterloo, LLC.
Richard Briansky, with whom Amy B. Hackett and McCarter &
English, LLP were on brief, for appellant ZVI Construction Co.,
LLC.
John A. Tarantino, with whom Nicole J. Benjamin, Adler
Pollock & Sheehan P.C., Michael J. McMahon, and Cooley LLP were
on brief, for appellee.
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
**
Hon. Bobby R. Baldock, Circuit Judge of the United States
Court of Appeals for the Tenth Circuit, sitting by designation.
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June 28, 2017
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SOUTER, Associate Justice.
Entry ID: 6102598
This is an appeal from the
district court's judicial recognition of an English arbitrator's
determination of joint contract liability against the seller and
the renovator of a building.
As the parties had agreed, the
assessment of damages for the items of breach was postponed to a
subsequent stage of arbitration.
Owing to that agreement to
bifurcate litigation of the liability and damages issues, the
district court treated the arbitrator's liability judgment as
final
and
thus
entitled
to
judicial
recognition,
and
it
specifically held the contractor for the renovation work bound
as
a
party
disputes.
to
the
agreement
providing
for
arbitration
of
In this review of the district court's determinations
of finality and party-status we affirm.
I.
The University of Notre Dame (USA) in England agreed
to
buy
an
English
building
from
TJAC
Waterloo,
LLC,
for
$58,833,700, once the structure had been renovated and converted
into a student dormitory by TJAC's associated corporation, ZVI
Construction Co., LLC.
Notre
Dame
and
TJAC
The purchase and sale agreement between
addressed
both
the
conveyance
and
the
reconstruction to be performed by ZVI, there referred to as the
contractor, which also executed the P&S Agreement by the same
agent who signed for TJAC.
P&S
Agreement
provided
So far as it concerns us here, the
that
in
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case
the
parties
could
not
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resolve any dispute that might arise (except over the meaning
and
construction
seller
could
of
refer
the
the
agreement
itself),
disagreement
for
either
buyer
adjudication
by
or
an
"expert," who in American usage would be called an arbitrator.
Despite a rosy projection of satisfaction by Notre Dame's own
consultant after the work was finished, Notre Dame subsequently
identified
a
number
of
inadequacies
claimed
to
add
up
to
$8,500,000 in necessary remedial work.
Since the parties could not resolve their differences,
at
Notre
Dame's
behest
the
breach
of
contract
claims
were
submitted to an arbitrator as provided in the P&S Agreement,
subject to a further agreement by the three parties to the P&S
Agreement to try the liability elements of the breach claims
first and separately litigate the issues of "quantum" or damages
for
any
liability
items
of
stage.
breach
The
the
three
arbitrator
parties
might
proceeded
find
to
at
the
try
the
liability claims, and in due course the arbitrator circulated a
report
of
his
preliminary
parties to comment upon.
conclusions,
which
he
invited
the
After considering the responses, he
issued a "determination," or judgment, that TJAC and ZVI were
jointly liable to Notre Dame, based on findings of substantial
shortcomings in the required renovation.
After Notre Dame circulated its opening submission in
the
subsequent
damages
phase,
TJAC
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and
ZVI
asked
for
a
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postponement of litigation due to the ill health of someone
involved on their side.
This led Notre Dame to ask for a
showing that the two corporations would be in a position to
satisfy the award of damages that the arbitrator would at some
point
decree.
The
liable
parties
were
not
reassuring
and
refused to confirm that the liability insurance required by the
P&S
Agreement
filing
suit
enjoining
remained
in
TJAC
a
in
effect.
Massachusetts
and
ZVI
from
Notre
state
Dame
court
dissipating,
responded
for
an
by
order
encumbering,
or
transferring assets that might be needed for payment of any
judgment for damages.
After TJAC and ZVI removed the case to
the federal district court under the statute implementing the
United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330
U.N.T.S. 38 (ratified by the United States on Sept. 30, 1970),
see
9
U.S.C.
judgment
§
205,
security
arbitrator's
by
Notre
Dame
requesting
determination
supplemented
judicial
on
its
claim
confirmation
liability,
for
of
which
for
the
the
Convention made provision, see 9 U.S.C. § 207; Convention arts.
III, V.
The
district
court
granted
confirmation
under
the
terms of the Convention and authorized attachment of property in
the
amount
of
just
over
anticipated award of damages.
$7
million
as
security
for
the
Univ. of Notre Dame (USA) in Eng.
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v. TJAC Waterloo, LLC, No. 16-cv-10150-ADB, 2016 WL 1384777 (D.
Mass. Apr. 17, 2016).
claim
that
the
In this ensuing appeal, TJAC and ZVI
arbitrator's
judgment
of
liability
in
the
bifurcated arbitration proceeding lacks the finality required
for judicial confirmation of a foreign arbitral award under 9
U.S.C. § 207.
And ZVI claims that in any event it is not
subject to that judgment because the P&S Agreement's arbitration
clause was a submission to arbitration by Notre Dame and TJAC
only.
II.
The
issue
of
the
eligibility
of
the
arbitrator's
liability decree for judicial confirmation under the terms of
the Convention encompasses both legal and factual components:
the rule stating the necessary condition for judicial cognizance
and the sufficiency of the record to show that the standard is
satisfied by the arbitrator's liability judgment at this point
in the present case.
So far as relevant here, the parties
address the legal standard at two levels of specificity, and at
the more general of the two, they have no apparent disagreement.
Although judicial construction of the Federal Arbitration Act
has produced the requirement for judicial recognition that a
decree
be
"final,"
see
El
Mundo
Broad.
Corp.
v.
United
Steelworkers of Am., AFL-CIO CLC, 116 F.3d 7, 9 (1st Cir. 1997),
and the Convention textually requires that it be "binding," see
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Convention
art.
Page: 7
V(1)(e),
both
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parties
conceptually indistinguishable standards.
Entry ID: 6102598
treat
these
as
In so assuming, they
are in harmony with cases from outside this circuit that have
addressed the Convention standard for judicial confirmation with
the domestic law vocabulary.
See Ministry of Def. & Support for
the Armed Forces of the Islamic Republic of Iran v. Cubic Def.
Sys., Inc., 665 F.3d 1091, 1100 (9th Cir. 2011) ("Th[e notbinding] defense [in the Convention's Article V(1)(e)] may be
invoked when an action to confirm or enforce an arbitration
award is filed before the award has become final."); Ecopetrol
S.A. v. Offshore Expl. & Prod. LLC, 46 F. Supp. 3d 327, 336
(S.D.N.Y. 2014) (referring interchangeably to the Convention's
condition that an award must be "binding" and a requirement that
the
award
be
"final");
Daum
Glob.
Holdings
Corp.
v.
Ybrant
Digital Ltd., No. 13 Civ. 03135 (AJN), 2014 WL 896716, at *2
(S.D.N.Y. Feb. 20, 2014) (citing as an "example" of a foreign
award that "is not binding on the parties" one "that is interim,
not
final"
reason
general
to
(internal
doubt
level
the
and
quotation
marks
parties'
common
accordingly
omitted)).
We
understanding
scrutinize
the
see
at
no
this
foreign
determination now before us by the familiar finality standard
that "[n]ormally, an arbitral award is deemed 'final' provided
it evidences the arbitrators' intention to resolve all claims
submitted in the demand for arbitration."
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Hart Surgical, Inc.
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v. Ultracision, Inc., 244 F.3d 231, 233 (1st Cir. 2001) (quoting
Fradella v. Petricca, 183 F.3d 17, 19 (1st Cir. 1999)).
The
parties'
harmony
falters,
however,
when
they
confront the need for a more specific corollary governing the
eligibility
for
confirmation
of
an
arbitrator's
decree
determining only one issue within a controversy that the parties
have agreed to bifurcate for separate arbitral proceedings.
The
Appellants cite the Convention's provision for confirmation and
its "binding" requirement.
Notre Dame, to the contrary, relies
on the rule in this circuit governing a bifurcated domestic
arbitration, which can be stated shortly.
Hart Surgical holds
that a bifurcated liability judgment may qualify as final when
the
arbitrating
parties
have
formally
agreed
to
liability and damages in separate, independent stages.
235-36.
litigate
Id. at
Providence Journal Co. v. Providence Newspaper Guild,
271 F.3d 16 (1st Cir. 2001), takes the further step of holding
that an informal agreement to that effect will suffice.
19-20.
These
cases,
in
turn,
are
supported
by
the
Id. at
Supreme
Court's position that the Federal Arbitration Act "lets parties
tailor some, even many, features of arbitration by contract,
including . . . procedure."
Mattel,
Inc.,
552
U.S.
Hall Street Assocs., L.L.C. v.
576,
586
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(2008)
(internal
citation
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The domestic law would, then, support the district
court's confirmation of the liability determination, there being
no
question
that
the
parties
here
did
informally
agree
to
arbitrate liability separately before reconvening in a separate
stage of the proceeding to address "quantum," that is, damages.2
The only remaining question about the legal standard
is whether there is any reason against following the domestic
rule
in
construing
requirement,
and
brought
our
to
we
the
see
generally
none.
attention
No
identical
Convention
addressing
the
Convention
case
has
been
significance
of
bifurcation in addressing finality, and ZVI has given us no
reason
to
think
that
the
Providence
Journal
is
Convention
than
reading
contrary,
we
in
agree
with
any
the
rationale
less
the
view
1
for
apropos
domestic
of
the
Hart
Surgical
and
in
applying
the
statute.
Seventh
On
Circuit
the
as
We
reject
Appellants'
argument
that
Hall
Street
effectively overruled Hart Surgical and Providence Journal. The
Supreme Court held in Hall Street that parties may not
contractually expand the bases for vacatur or modification of an
arbitrator's decision, as set out in the Federal Arbitration
Act.
Hall Street, 552 U.S. at 578.
It did not hold that the
Act's finality requirement precludes the judicial recognition of
a liability award prior to assessment of damages when the
parties have agreed to bifurcate arbitration of two issues into
separate proceedings.
In fact, Hall Street, as noted,
recognized the Act's compatibility with contractual tailoring of
procedures. Id. at 586.
2
Indeed, counsel for TJAC and ZVI informed the expert
during the arbitration proceeding that her clients were "in
agreement with" the bifurcation of the proceeding "into two
stages,"
liability
and
damages,
and
the
expert
later
acknowledged that TJAC and ZVI "have agreed" to bifurcation.
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stated in Publicis Communication v. True North Communications,
Inc.,
206
F.3d
supplements
the
725
(7th
Federal
Cir.
2000),
Arbitration
that
Act,
the
and
"Convention
the
logic
of
decisions applied to the latter may guide the interpretation of
the former."
Hart
Id. at 729.
Surgical
generally
case,
which
addressing
We thus follow the lead of our own
cited
finality
the
Publicis
under
the
discussion
domestic
in
statute,
thereby suggesting that the concern is comparable in each of the
legal regimes.
See Hart Surgical, 244 F.3d at 233-34.
In sum,
we hold that a final determination of liability but not damages
can satisfy the finality requirement of Article V(1)(e) of the
Convention when, as here, the parties have agreed to submit the
issue
of
liability
to
the
arbitrator
for
a
distinct
determination prior to a separate proceeding to assess damages.3
That
arbitrator's
leads
liability
to
the
judgment
factual
was
issue,
final
in
whether
this
the
instance.
TJAC and ZVI argue that it was not, based on the following
provision in the award:
None of the answers are the final answers.
All and
any may now be commented upon in any way seen fit.
3
There is no merit to Appellants' suggestion that the
bifurcation agreement was inadequate for purposes of judicial
authority to confirm, which would require express agreement
authorizing judicial review after the liability phase but before
the damages litigation.
Neither Hart Surgical nor Providence
Journal hints at such a requirement.
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The argument, though, is grasping for a straw that the record
shows is not there to be grasped.
The same language occurred in
the first, clearly tentative, draft of proposed findings and
judgment,
which
bears
the
title,
"A
Document
of
Preliminary
Indications on Liability for Comment in Reply by the Parties."
That tentative draft proceeded to expand on its title:
The Issues are rehearsed below.
They are not the
final Decisions on Liability.
The parties may now
make a final comment.
Thereupon liability will be
determined and published.
The parties did in fact comment upon the draft,4 which was then
superseded by the determination at issue here.
In place of the
preliminary language of the draft circulated for comment, the
judgment
subsequently
issued
begins
Expert Determination on Liability."
with
the
descriptor,
"An
The arbitrator emphasized
the finality of the liability determination even further some
eight months later in rejecting ZVI's belated claim to be exempt
from
the
arbitrator's
jurisdiction,
as
discussed
below:
"Liability was decided via the 81-page Award . . . . The binding
Decision . . . cannot
be
changed."
Given
the
legitimacy
of
requesting bifurcation in foreign as well as domestic arbitral
determinations,
there
is
no
reason
against
accepting
the
finality of the liability award as the arbitrator understood it:
4
Notre Dame, in its
plural, submitted comments.
by TJAC and ZVI.
brief, states that "the parties,"
The record before us shows comments
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the usual rule that "[n]ormally, an arbitral award is deemed
'final'
provided
it
evidences
the
arbitrators'
intention
to
resolve all claims submitted in the demand for arbitration."
Fradella,
183
recognizing
arbitration,
F.3d
at
finality
in
an
19.5
Given
reviewing
arbitrator's
one
Hart
Surgical's
issue
understanding
of
of
a
bifurcated
finality
bifurcated component should likewise be respected.
rule
on
a
For that
matter, the manifest understanding of the parties was the same.
See Providence Journal, 271 F.3d at 19.
None of them responded
with a note of disagreement with the arbitrator's description of
his conclusions as "binding," or with the judgment heading of
"Determination"
indicating
that
in
place
the
of
"Preliminary
liability
litigation
Indications,"
was
over.
thus
The
disagreement came only after Notre Dame went to court seeking
security for anticipated damages.
In sum, our de novo review, see Cytyc Corp. v. DEKA
Prods. Ltd. P'ship, 439 F.3d 27, 32 (1st Cir. 2006), shows that
the district court was surely correct in finding that the two
5
Appellants argue that this is not a normal case because
the arbitrator noted that several items of liability would
require further evidence at the damages stage to determine the
right approach to curing the defects.
But these observations
are entirely consistent with the finality of the liability
determinations.
In a garden-variety fender-bender case, a
dispute over the relative economy of installing a new fender or
hammering out the dent in the old one is separable from and
independent of the question of the defendant's liability for
causing the dent.
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sentences TJAC and ZVI rely on are nothing more than mistaken
leftovers from the earlier document, and there was no error in
its conclusion that the "binding" liability judgment qualified
as final and was thus a candidate for confirmation.
Since the
objecting parties present no argument that the award should be
amended
or
vacated,
we
hold
that
federal
jurisdiction
was
properly exercised in confirming it as written.
III.
ZVI
alone
raises
the
remaining
issue
here,
in
its
claim that it could not be subjected to arbitration because it
never agreed to arbitrate as a party to the P&S Agreement's
arbitration clause.
The evidence, however, adds up convincingly
to defeat the claim.
The P&S Agreement referred to ZVI as one
of three parties, along with TJAC and Notre Dame.
The subject
matter of the arbitration clause was described as "any dispute
arising
between
the
parties
hereto
as
to
their
respective
rights[,] duties and obligations hereunder or as to any matter
arising out of or in connection with the subject matter of this
agreement
(other
than
any
with
regard
construction of this agreement)."
with
this
comprehensive
language,
to
the
meaning
or
ZVI executed the agreement
by
the
signature
of
a
corporate officer who also signed for the related corporation,
TJAC.
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When
settlement
by
straightforward
statement
the
in
Page: 14
disputes
the
of
record
over
adequate
ZVI
agreement,
reading
Date Filed: 06/28/2017
acted
what
that
performance
in
it
had
it
would
Entry ID: 6102598
accord
signed.
take
evaded
with
made
part
no
in
It
a
the
arbitration merely as a witness or source of evidence, and its
actions bespoke an understanding that it was bound to arbitrate.
ZVI agreed with TJAC and Notre Dame in the selection of the
particular
arbitrator
who
heard
the
case,6
and
when
the
proceeding began, ZVI participated without any objection for the
record
or
caveat
that
it
had
not
agreed
to
arbitrate.
It
asserted no such claim in response to the preliminary draft
concluding that it was liable jointly with TJAC for contractual
failures.
Nor did it so protest when the arbitrator's final
liability
judgment
was
issued
thereafter
before
Notre
Dame
against
brought
it,
this
or
at
action
any
to
time
assure
actual payment of anticipated damages and sought confirmation of
the arbitral determination of liability.
In sum, ZVI's actions
confirm what the language of the P&S Agreement provides in so
many words, that ZVI along with the other signatories and the
arbitrator understood that it was a party whose obligations were
subject to the arbitration.
ZVI's conduct thus provides the
conclusive premise for applying the rule that a party who does
6
Notre Dame represents in its brief that the three parties
agreed to the appointment of the expert.
Appellants do not
dispute this characterization.
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"not reserve [an] issue" or contest the arbitrator's authority
to
decide
it,
but
rather
submits
the
issue
to
arbitration,
"cannot complain that the arbitrator[] reached it."
See JCI
Commc'ns, Inc. v. Int'l Bhd. of Elec. Workers, 324 F.3d 42, 49
(1st Cir. 2003).
ZVI's late attempts to counter the contract terms and
its own behavior as signatory and participant are unavailing.
First, it characterizes itself as a merely "nominal" party to
the P&S Agreement, claiming that its sole obligation under the
terms
of
the
document
was
oversee the work to be done.
to
employ
a
named
individual
to
Although descriptions of that work
were set out in Schedule 1 of the agreement, ZVI emphasizes that
the
terms
provided
merely
that
ZVI's
services
as
contractor
would be "procure[d]" from it by TJAC, as was done through a
separate Building Contract between it and TJAC, the point being
that ZVI had no direct obligation under the P&S Agreement to
perform the renovation.
But
apparent
this
agreement
argument
to
fails
arbitrate
to
immunize
over
the
performance, for two independent reasons.
ZVI
from
its
of
its
adequacy
Simply as a textual
matter, the "nominal party" contention ignores the description
of
arbitral
subjects
contained
in
the
covering disputes "between the parties."
arbitration
clause
As quoted above, those
subjects included not only any dispute over performance of the
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particular obligations under the P&S Agreement, but also those
"as to any matter arising out of or in connection with the
subject
matter
of
[the
P&S
Agreement]."
Given
ZVI's
identification in the P&S Agreement as "Contractor," it makes
sense to read this reference to a "matter arising" as covering
those that would involve ZVI as contractor under the separate
agreement it made with TJAC to do the modification work on the
building.
Moreover, the "arising out of or in connection with"
language is reasonably read to cover that very work, as it was
also addressed in a separate Duty of Care Agreement between ZVI
and
Notre
Dame.
There,
ZVI
agreed
to
undertake
a
"Project
[that] will when completed satisfy any performance specification
or requirement included or referred to in the Building Contract"
between ZVI and TJAC.
ZVI has given us no reason to doubt that
this language refers to the actual work whose demerits were the
subject of the arbitration in issue.
It is true that this is not the analysis given by the
arbitrator, but it is not the only analysis that supports the
district court's confirmation decree.
Another possibility is to
refer again to Schedule 1 of the P&S Agreement listing items of
renovation work that the "Contractor" is to perform, once having
been "procure[d]" to do so by the Seller.
list
as
imposing
a
direct
obligation
While reading this
on
ZVI
to
renovate
accordingly may not be the better reading of the agreement, the
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arbitrator's
conclusion
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that
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ZVI
was
obliged
Entry ID: 6102598
to
perform
accordingly is entitled to judicial confirmation under the rule
of limited review, that courts will defer to arbitration awards
"as long as the arbitrators are 'even arguably construing or
applying the contract and acting within the scope of [their]
authority.'"
Paperworkers
Cytyc
Int'l
Corp.,
Union
439
v.
F.3d
Misco,
at
Inc.,
32
(quoting
484
U.S.
United
29,
38
(1987)).
ZVI's second attempt to escape its facial agreement to
submit
to
arbitration
arbitration
relies
clause
give
that
on
provisions
"Buyer"
(Notre
the
the
of
the
Dame)
and
"Seller" (TJAC) the rights to call for arbitration and have
their
"written
submissions"
considered,
with
no
provision for the benefit of the "Contractor" (ZVI).
parallel
From this,
ZVI would have us infer that the clause must be an agreement
between
Buyer
reasoning,
however,
clause's text.
power
to
and
call
Seller
is
only.
The
undercut
by
a
plausibility
further
of
look
at
this
the
Although the Buyer and Seller are given the
for
arbitration,
the
subject
matter
of
that
arbitration is described as any dispute between the "parties,"
without limiting parties to the Buyer and Seller.
While the
language giving the power to invoke arbitration to only two of
the
three
parties
subject
to
it
presumably
carries
some
significance, the limitation can make sense on the assumption
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Entry ID: 6102598
that the two closely related companies, TJAC and ZVI, chose to
speak with one voice before making any call for arbitration,
with TJAC having the ultimate discretion.
ZVI proposes a different rationale for the absence of
a power on its part to initiate arbitration, which it finds in
its Duty of Care Agreement with Notre Dame, and particularly in
the provision that the contract "is subject to English law and
the jurisdiction of the English courts."
From this ZVI would
have us understand that the arbitration clause may sensibly be
read as an agreement between Buyer and Seller only, because by
the terms of this Duty of Care Agreement any dispute that might
arise between ZVI and Notre Dame could only be litigated in a
judicial forum.
There is more than one answer to this argument,
but it suffices to note that, once again, its force depends on
ignoring a provision from the same contract ZVI relies on.
The
Duty of Care Agreement also provides that it "shall in no way
prejudice or affect any other rights or remedies of [Notre Dame]
against [ZVI] whether at common law or otherwise in respect of
the Project or other matters referred to herein."
Whatever
power Notre Dame had to require arbitration is thus unaffected
by the Duty of Care Agreement, and the most that can be said
about the judicial forum selection clause may be that it gives
ZVI a forum to litigate against Notre Dame on an issue that
neither Notre Dame nor TJAC is willing to subject to arbitration
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Document: 00117172098
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Date Filed: 06/28/2017
Entry ID: 6102598
under the terms of the P&S Agreement, or on an issue of contract
meaning that the P&S Agreement exempts from arbitration.
In any event, because the terms of the Duty of Care
Agreement (like those of the P&S Agreement itself) provide that
it is "subject to English law" in the English courts, we note
the
judgment
of
the
Technology
and
Construction
Court,
a
subdivision of the Queen's Bench Division of the High Court of
Justice, where ZVI filed an action attempting (as it does here)
to
disencumber
arbitrator.
itself
of
the
liability
determined
by
the
We take judicial notice of the ensuing judgment as
an authoritative statement under English law of the arbitrator's
jurisdiction over ZVI.
relationship
of
the
That court did not attempt to parse the
terms
of
the
two
agreements
on
the
jurisdictional question here, but instead relied on ZVI's active
and unconditional participation in the arbitration.
See ZVI
Const. Co. v. Univ. of Notre Dame (USA) in Eng. [2016] EWHC
(TCC) 1924 ¶ 52 (Eng.).
This was the English court's premise
for
"impliedly
concluding
that
ZVI
agreed"
to
the
jurisdiction and is "estopped" from claiming otherwise.
52, 64.
arbitral
Id. ¶¶
Thus, the court applying English law reached a result
that confirms the arbitrator's authority, by a line of reasoning
comparable to this court's own rule, mentioned above, that where
a party submits an issue to arbitration, it "cannot complain
that the arbitrator[] reached it."
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JCI Commc'ns, 324 F.3d at
Case: 16-1397
49.
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That basis for judgment supports the result that is, of
course, entirely consistent with what we set out earlier as the
better reading of the contract documents.
IV.
The district court's judgment confirming the expert's
liability award is affirmed.
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