284 F.3d 1114 (9th Cir. 2002), 01-15539, Glencore Grain Rotterd AMB.V. v. Shivnath Ria Harnarain Co.

Docket Nº:01-15539
Citation:284 F.3d 1114
Party Name:GLENCORE GRAIN ROTTERDAM B.V., PLAINTIFF-APPELLANT, v. SHIVNATH RAI HARNARAIN CO., DEFENDANT-APPELLEE.
Case Date:January 17, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1114

284 F.3d 1114 (9th Cir. 2002)

GLENCORE GRAIN ROTTERDAM B.V., PLAINTIFF-APPELLANT,

v.

SHIVNATH RAI HARNARAIN CO., DEFENDANT-APPELLEE.

No. 01-15539

United States Court of Appeals, Ninth Circuit

January 17, 2002

Argued and Submitted January 17, 2002--San Francisco, California

--San Francisco, California

March 26, 2002

Page 1115

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Counsel: Michael P. O'Bresly (Argued & Briefed), Lillick & Charles Llp, San Francisco, California, for the plaintiff-appellant. Walter T. Johnson (Briefed), Nixon & Peabody Llp, San Francisco, California, for the plaintiff-appellant. William W. Haskell (Argued), Haskell & Goodman Llp, Hayward, California, for the defendant-appellee. Ann Judge (Briefed), Haskell & Goodman Llp, Hayward, California, for the defendant-appellee.

Page 1118

Appeal from the United States District Court for the Northern District of California, Claudia Wilken, District Judge, Presiding, D.C. No. CV-00-02705-CW

Before: Alfred T. Goodwin, Joseph T. Sneed and Stephen S. Trott, Circuit Judges.

Judge Trott

OPINION

Glencore Grain Rotterdam B.V. ("Glencore Grain") filed an application in the district court under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("Convention") for an order confirming its arbitration award against Shivnath Rai Harnarain Company ("Shivnath Rai"). On Shivnath Rai's motion, the district court dismissed Glencore Grain's application for lack of personal jurisdiction.

We have jurisdiction over Glencore Grain's appeal pursuant to 28 U.S.C. § 1291. We hold that the Convention does not eliminate the due process requirement that a federal court have jurisdiction over a defendant's person or property in a suit to confirm a previously issued arbitration award. Because Glencore Grain fails (1) to identify any property owned by Shivnath Rai in the forum, or (2) to allege facts that support a finding of personal jurisdiction, we affirm the district court's dismissal of the complaint.

BACKGROUND

This case arises out of a series of eleven contracts under which Glencore Grain, a Netherlands corporation with its principal place of business in Rotterdam, agreed to purchase approximately 300,000 tons of rice from Shivnath Rai, a manufacturer and exporter of rice incorporated in India with its principal place of business in New Delhi. The contracts called for the delivery of rice at the Port of Kandla, India. Among the rights and responsibilities set forth in each contract were the following arbitration and choice of law clauses:

11.--Any dispute arising on this Contract shall be referred for settlement to the Arbitration by two Members of [the London Rice Brokers'] Association's Panel of Arbitrators or their Umpire, being also a member of this Panel. Each party to appoint one Arbitrator and having the right to reject one nominee . . . . The parties to the arbitration shall have the right of appealing against any Award (except on questions of law) within 30 days from the date of Award to the London Rice Brokers' Association, whose decision shall be final. Any payments arising out of the Award are due to be made within 30 days of the date thereof.

14.--Domicile.--The Contract shall be deemed to have been made in England and . . . shall be governed in all respects by English Law. Any dispute arising out of or in connection therewith shall be submitted to arbitration in accordance with the Rules of the London Rice Brokers' Association.

A dispute arose between the parties concerning the delivery of rice and was submitted to arbitration before the London Rice Brokers' Association ("LRBA"). In its written decision from July 1997, the LRBA ruled in favor of Glencore Grain, awarding it roughly $6.5 million; including interest, the award exceeded $7 million. Shivnath Rai did not challenge the decision in England, where the award became final and remains enforceable, nor did Shivnath Rai pay up.

In March 1998, Glencore Grain filed suit in the High Court of Delhi at New Delhi, Page 1119

India to enforce the unpaid arbitration award. Shivnath Rai objected to the enforcement of the award on several grounds, including its failure to consent to the arbitration provisions in the underlying contracts and the arbitrators' allotment of insufficient time to defend its case on the merits. Glencore Grain's enforcement action remains pending in the High Court of Delhi.

In July 2000, Glencore Grain filed an application in the federal district court for the Northern District of California, seeking confirmation of the arbitral award under the Convention, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. 6997, 330 U.N.T.S. 38, reprinted following 9 U.S.C.A. § 201 (West 1999). Shivnath Rai filed a motion to dismiss on six different grounds, including the absence of personal jurisdiction.1

In its motion opposing dismissal, Glencore Grain submitted evidence of Shivnath Rai's minimum-contacts with California and with the United States as a whole to justify the exercise of personal jurisdiction. Glencore Grain provided evidence of the following shipments of rice by Shivnath Rai: a 1987 shipment into the Port of Los Angeles; seven shipments through East Coast ports from 1993 to 1995; and fifteen shipments into the Port of San Francisco from March 1999 to March 2000. In addition, Glencore Grain submitted documents indicating that Alok Mohan, President of Asian Brands, Inc., located in Union City, California, served as Shivnath Rai's sales agent for its rice sales throughout the United States. Glencore Grain contended that these contacts supported the exercise of either specific or general jurisdiction over Shivnath Rai.

Unswayed, the district court dismissed the action for lack of personal jurisdiction. In rejecting the general jurisdiction argument, the district court reasoned: "[p]petitioner has not asserted that Respondent conducts any business in the [U.S.] except through this sales agent [i.e., Asian Brands, Inc.]." Accordingly, the district court found insufficient contacts to exercise general jurisdiction. In addition, the district court refused to exercise specific jurisdiction because"[Glencore Grain] nowhere asserts that the cause of action arises out of or relates to [Shivnath Rai's] activities within the forum." Lacking personal jurisdiction over Shivnath Rai, the district court dismissed Glencore Grain's application to confirm its arbitral award.

This timely appeal followed.

DISCUSSION

I. Standard of Review

We review a dismissal for lack of jurisdiction de novo. Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir. 2001). Because the district court dismissed the case without holding an evidentiary hearing, Glencore Grain need only make a prima facie showing of facts supporting jurisdiction through its pleadings and affidavits to avoid dismissal. See id. We accept as true Glencore Grain's uncontroverted allegations, and resolve in its favor factual conflicts contained in the parties' filings. See AT&T Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996).

II. The Convention Provides Subject Matter Jurisdiction Over Glencore Grain's Action To Enforce Its Arbitration Award

In 1970 Congress ratified the Convention, a multilateral treaty providing for "the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition Page 1120

and enforcement of such awards are sought." Convention, art. I(1), 21 U.S.T. 2517. Congress implemented the Convention by passing Chapter II of the Federal Arbitration Act ("FAA"), 9 U.S.C. § § 201-208,2 which provides that

[a]n action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States. The district courts of the United States . . . shall have original jurisdiction over such an action or proceeding, regardless of the amount in controversy. 9 U.S.C. § 203.

The FAA further provides:

Within three years after an arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration. The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention. 9 U.S.C. § 207.

The Convention governs this action to confirm Glencore Grain's arbitration award because the award was obtained in the United Kingdom (London) within three years of Glencore Grain's suit in district court. See Restatement (Third) of Foreign Relations Law § 487 cmt. b (1987) ("[T]he critical element is the place of the award: if that place is in the territory of a party to the Convention, all other Convention states are required to recognize and enforce the award, regardless of the citizenship or domicile of the parties to the arbitration.").3 Thus the...

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