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11 Harv. Bus. L. Rev. Online 1 (2020-2021)

handle is hein.journals/hblro11 and id is 1 raw text is: HARVARD BUSINESS LAW REVIEW GE ENERGY V. OUTOKUMPU: NON-SIGNATORIES CAN Now ENFORCE INTERNATIONAL COMMERCIAL ARBITRATION AGREEMENTS ON EQUITABLE ESTOPPEL GROUNDS Tamar Meshelt I. Introduction The recent unanimous decision of the United States Supreme Court (Supreme Court or Court) in GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC1 (Outokumpu) resolves a relatively straightforward question: whether a non-signatory to an international commercial arbitration agreement can enforce it on the basis of the equitable estoppel doctrine. The United States Courts of Appeals for the Eleventh2 and Ninth3 Circuits had categorically ruled out the availability of equitable estoppel in this context. In contrast, the First4 and Fourths Circuits had applied the doctrine to enforce international commercial arbitration agreements by or against non-signatories. Answering the question in the affirmative and reversing the Eleventh Circuit, the Supreme Court has now resolved this split among the circuit courts. Its decision also brings much-needed clarity and predictability to the enforcement of international commercial arbitration agreements in the United States. However, in its narrow judgment the Supreme Court left unresolved two related and equally contentious questions: first, whether international commercial arbitration agreements must be signed to be valid and enforceable in the t Assistant Professor, University of Alberta Faculty of Law. 1 GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S.Ct. 1637, 1640 (2020). 2 Outokumpu Stainless USA, LLC v. GE Energy Power Conversion Fr. SAS, Corp., 902 F.3d 1316, 1326 (11th Cir. 2018) (to compel arbitration, the Convention requires that the arbitration agreement be signed by the parties before the Court or their privities.), rev'd 140 S.Ct. 1637 (2020). 3 Yang v. Majestic Blue Fisheries, LLC, 876 F.3d 996, 1001 (9th Cir. 2017) (the Convention Treaty does not allow non-signatories or non-parties to compel arbitration, including on the grounds of equitable estoppel). 4 Sourcing Unlimited, Inc. v. Asimco Int'l, Inc., 526 F.3d 38, 40 (1st Cir. 2008) (the court found that a signatory to the arbitration agreement in this case was equitably estopped from refusing to arbitrate with a non-signatory, noting that [t]he fact that the defendants are not signatories is not a basis on which arbitration may be denied.). 5 Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 375 (4th Cir. 2012) (the doctrine of equitable estoppel applies to claims raised by a signatory to the arbitration agreement against a non-signatory).

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