SCOTUS to Consider Whether Non-Signatory May Compel Arbitration Under New York Convention

The Supreme Court of the United States has agreed to resolve a circuit split regarding whether a non-signatory to an agreement to arbitrate may compel arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) based on the doctrine of equitable estoppel.  In GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, et al., No. 18-1048, the 11th Circuit Court of Appeals held a non-signatory subcontractor, GE Energy Power, was not permitted to compel an ongoing dispute to arbitration under the New York Convention because “the Convention requires that the arbitration agreement be signed by the parties before the Court or their privities” in order to do so.  Unsatisfied with this result, GE Energy Power sought review by the nation’s highest court.

The Question Presented in the case is:

Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.

According to GE Energy Power’s Petition for a Writ of Certiorari:

The Courts of Appeals are split 2-to-2 on the question presented. The First and Fourth Circuits have held that non-signatories may compel a signatory to arbitrate under the Convention based on the doctrine of equitable estoppel. But the Ninth and Eleventh Circuits have held that the Convention does not allow non-signatories to compel arbitration, even if equitable estoppel would otherwise apply.

On June 28th, the United States Supreme Court granted certiorari without comment and agreed to hear oral arguments in the case in the October 2019 term.

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