Atsa of California, Inc. v. Continental Ins. Co.
| Decision Date | 25 February 1985 |
| Docket Number | 81-6026 and 84-7565,Nos. 81-6017,s. 81-6017 |
| Citation | 754 F.2d 1394 |
| Parties | ATSA OF CALIFORNIA, INC., Plaintiff/Cross-Claimant/Appellant, v. CONTINENTAL INSURANCE CO., etc., Defendant, v. CAIRO GENERAL CONTRACTING CO., Cross-Defendant/Appellee. Hamed ABULHASSAN, Counter-Defendant/Appellant, v. CAIRO GENERAL CONTRACTING CO., Cross-Defendant/Appellee. ATSA OF CALIFORNIA, INC., Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, Cairo General Contracting Company, Real Party in Interest. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert E. Currie, Stephen J. Sturgill, Latham & Watkins, Newport Beach, Cal., for ATSA of California.
Leo J. Vander Lans, Stephen T. Owens, Graham & James, Los Angeles, Cal., for Cairo General Contracting Co.
Appeal from the United States District Court for the Central District of California.
Petition for Writ of Mandamus to the United States District Court for the Central District of California.
Before ANDERSON and PREGERSON, Circuit Judges, and SOLOMON *, District Judge.
On the basis of information supplied to the panel and the decision in Fertilizer Corporation of India v. IDI Management, Inc., 530 F.Supp. 542 (S.D.Ohio 1982), we assumed in our previous decision in this case that the International Chamber of Commerce (ICC) would not provide a neutral arbitrator to serve with the parties' partisan arbitrators. ATSA of California, Inc. v. Continental Insurance Co., 702 F.2d 172, 175-76 (9th Cir.1983). Consequently, we concluded that the parties' contractual agreement as to arbitration could not be fully executed. We ordered that, if the parties' partisan arbitrators were unable to agree upon a neutral arbitrator (umpire), the parties would then submit to ICC-supervised arbitration before three neutral arbitrators.
Contrary to the information previously available, the papers submitted by the parties on ATSA's petition for a writ of mandamus, filed August 29, 1984, indicate that the ICC will appoint a neutral arbitrator to serve with the parties' partisan arbitrators. The Rules for the ICC Court of Arbitration, art. 2, para. 1, provide that the ICC will appoint or confirm the appointment of neutral arbitrators "[i]nsofar as the parties shall not have provided otherwise...." The ICC Schedule of Conciliation and Arbitration Costs, app. III, para. IV, states: "A registration fee of US $100 is payable by each party if the ICC is called upon to appoint an arbitrator or arbitrators outside the Rules of Arbitration of the ICC." The court is informed that Cairo General Contracting Co. has applied to the ICC for the appointment of a neutral arbitrator to serve with the parties' partisan arbitrators and that the ICC stands ready to provide a neutral arbitrator.
As we stated in our previous decision, parties should be allowed "to attempt arbitration as they originally contemplated...." ATSA of California, 702 F.2d at 176; 9 U.S.C. Sec. 5. We previously failed to enforce the parties' contractual agreement--that they would obtain a neutral arbitrator from the ICC to serve with their partisan arbitrators--only because of our misunderstanding about ICC services. We now know that the ICC mechanism exists to carry out the parties' agreement.
Accordingly, the petition for a writ of mandamus is denied to the extent that it seeks review of the district court's orders entered May 25, 1983 and July 30, 1984. Moreover, we recall our mandate in Nos. 81-6017 and 81-6026 and amend our decision of March 21, 1983.
For paragraph IV of the opinion, we substitute the following:
The ATSA-Cairo contract provides that each party will select a partisan arbitrator, who in turn will agree upon a third, neutral arbitrator. If the two partisan arbitrators are unable to agree upon a third, neutral arbitrator, then the parties will apply to the International Chamber of Commerce (ICC) for the appointment of a neutral arbitrator. ATSA correctly contends that the district court exceeded the scope of the arbitration agreement when it ordered nomination of "neutral, disinterested" arbitrators. Under 9 U.S.C. Sec. 5, the parties' method of appointing arbitrators must be followed. Generally, partisan arbitrators are permissible. E.g., Orion Shipping and Trading Co. v. Eastern States Petroleum Corp., 284 F.2d 419, 421 (2d Cir.1960). We conclude that...
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