On June 1, 2020, the United States Supreme Court, in a unanimous decision by Justice Thomas, held that allowing non-signatories to an arbitration agreement to compel arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention” or “Convention”) through domestic equitable estoppel doctrines does not conflict with the Convention’s signatory requirement.  GE Energy Power Conversion France SAS Corp. v. Outokumpu Stainless USA LLC, et al., No. 18-1048 (June 1, 2020).  The case was on appeal from the Eleventh Circuit, and was previously previewed in our weekly newsletter at the beginning of this year.  The Court reversed the decision by the Eleventh Circuit, noting that the text of the Convention does not address whether parties that are not signatories may enforce arbitration agreements under domestic doctrines and holding that “nothing in the Convention’s text could be read to conflict with the application of domestic equitable estoppel doctrines.”
 

On August 7, 2018, the U.S. Court of Appeals for the Third Circuit affirmed a district court order compelling defendant, a broker-dealer and member of the Financial Industry Regulatory Authority (FINRA), to submit to FINRA arbitration, even though the broker-dealer agreements with plaintiff contained a forum-selection clause providing that all actions and proceedings arising out of the agreements and underlying transactions had to be filed in federal court in New York.  See Reading Health Sys. v. JPM Secs., No. 16-4234 (3d Cir. Aug. 7, 2018).  The Court held that, because the forum-selection clauses in broker-dealer agreements did not explicitly reference arbitration, it lacked the specificity required to advise plaintiff that it was waiving its affirmative right to arbitrate under FINRA’s rules.