Management & Technical Consultants S.A. v. Parsons-Jurden Intern. Corp.

• Decision Date: 08 July 1987
• Docket Number: 85-6587,Nos. 85-5930,PARSONS-JURDEN,s. 85-5930
• Parties: MANAGEMENT & TECHNICAL CONSULTANTS S.A., Plaintiff-Appellee, v.INTERNATIONAL CORP., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1531

820 F.2d 1531

MANAGEMENT & TECHNICAL CONSULTANTS S.A., Plaintiff-Appellee, v. PARSONS-JURDEN INTERNATIONAL CORP., Defendant-Appellant.

Nos. 85-5930, 85-6587.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 6, 1987.

Decided July 8, 1987.

William D. Temko, Los Angeles, Cal., for plaintiff-appellee.

Fred G. Bennett, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before ANDERSON, SKOPIL, and REINHARDT, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Parsons-Jurden International appeals two petitions by Management & Technical Consultants made in the district court to enforce a foreign arbitral award. The district court granted the petitions and Parsons-Jurden contends that the arbitrators lacked authority to make the award in that they decided subject matter not within the scope of the agreement to arbitrate. We affirm the judgment of the district court.

Management and Technical Consultants ("MTC ") is a Liberian corporation with its principal place of business in Monrovia, Liberia. Parsons-Jurden International Corp. ("P-J ") is a corporation organized under the laws of the State of Nevada, U.S.A., with its primary place of business in Pasadena, California, U.S.A. In December, 1972 P-J and MTC entered into an agreement whereby MTC was to assist P-J in obtaining a contract or contracts with the Government of Iran to develop mining facilities at the Sar Cheshmeh copper mines in Iran. The agreement provided that if P-J was awarded such a contract, P-J would pay MTC five percent of P-J's "gross billings" to the Iranian Sar Cheshmeh Copper Mining Company (Sar Cheshmeh). On July 3, 1973, P-J entered into a contract to furnish materials for the mining operation. The amount of the contract was to be either 2.35% of the project's actual final costs or as calculated by the projected costs plus an additional fee for services rendered at the mine, at Sar Cheshmeh's option.

After the materials were furnished, Sar Cheshmeh chose the latter method of calculation and under it paid P-J $7,402,500.00. MTC was awarded a portion of this payment pursuant to the December, 1972 P-J agreement with MTC. However, by 1974 the parties disagreed over the meaning of the term "gross billings" in the December, 1972 agreement. P-J contended the term meant only the compensation for the additional fees it was paid, whereas MTC maintained the term included all payments made to P-J.

In light of this disagreement, P-J and MTC entered into a subsequent superseding letter agreement on March 22, 1974, in which P-J agreed to pay MTC an additional amount as "full settlement" of the disputed payments. The March 22 letter agreement also contained the following proviso to the "full settlement" which the parties reached:

[P-J ] hereby agree[s] that should its gross billings to [Sar Cheshmeh] exceed a gross total of [$350 million] [MTC ] shall become entitled to receive from [P-J ] additional compensation. In such event and at such time [P-J ] will negotiate the terms and conditions of such payments to [MTC ].

The letter agreement also included an arbitration clause which stated:

This Letter of Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Bermuda. Any dispute arising between us concerning this Letter of Agreement which cannot be settled amicably, shall be resolved by arbitration to be held by a three-man arbitration panel to be appointed in accordance with the rules of arbitration of the International Chamber of Commerce of Paris. The site of the arbitration shall be in Hamilton, Bermuda.

In the years following the letter agreement, disputes over the total "gross billings" to Sar Cheshmeh continued. Finally, in 1982, MTC initiated arbitration against P-J under the arbitration clause contained in the letter agreement. MTC contended the gross billings P-J received exceeded $350 million dollars and that MTC was not receiving additional compensation as required by the agreement. P-J argued that while it agreed the arbitrators had authority to decide whether the gross billings exceeded $350 million, once that decision was made the arbitral panel lacked the authority to set the amount of additional compensation due MTC since this amount was to be determined "at such time [P-J ] will negotiate the terms and conditions of such payments to [MTC ]." In short, P-J argued the arbitration decision was limited to determining whether P-J had exceeded $350 million in gross billings, (thereby requiring the parties to negotiate further to set the amount owed MTC ), and did not include determining what actual amount MTC was to be paid.

Proceedings with the arbiters were held in Bermuda in 1983, with P-J and MTC filing pleadings, legal memoranda and sworn witness statements on the arbitrability issue. Oral argument was also presented. On June 14, 1984, the arbiters issued an award pursuant to the 1974 letter agreement requiring P-J to pay MTC $1.85 million plus interest as the amount due for the gross billings to Sar Cheshmeh. However, the reasons for the award were not made a part of the written arbiters' decision. Later, in light of the $1.85 million award, the arbiters also awarded MTC $414,686.00 as costs ($402,000.00 costs plus $12,686.00 in fees) for obtaining and confirming the prior award.

In 1985, MTC filed in district court a "Petition and Motion for Recognition, Confirmation and Enforcement of Foreign Arbitral Award" under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. Secs. 201-208, to enforce the $1.85 million award. P-J opposed the petition on the ground that the arbiters exceeded their authority in making an award which was to be determined by negotiation between the parties. The district court granted the petition, affirming the $1.85 million award plus interest from the date the arbitration award was entered. Additionally, MTC filed a similar petition for $414,686.00 to enforce the arbitrators' award of costs. This petition was also granted.

P-J appeals both the district court's judgment to enforce the $1.85 million award and the $414,686.00 award of costs. While each was appealed separately, they have been consolidated here. Jurisdiction rested under 9 U.S.C. Sec. 203 in the district court and rests under 28 U.S.C. Sec. 1291 in this court.

The language at issue in the letter agreement states that "[a]ny dispute ... which cannot be settled amicably, shall be resolved by arbitration...." Since this language concerns the enforcement of an agreement to arbitrate, it is clear the letter agreement falls within the scope of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("Convention"). See 9 U.S.C. Sec. 202. ¹ Under the Convention, an arbiter's award can be vacated only on the grounds specified in the Convention. See 9 U.S.C. Sec. 207; ² Fotochrome Inc. v. Copal Co., 517 F.2d 512, 518 (2d Cir.1975). In interpreting the grounds specified, it is generally recognized that the Convention tracks the Federal Arbitration Act, 9 U.S.C. Sec. 1, et seq. Compare 9 U.S.C. Sec. 201 with 9 U.S.C. Sec. 1 et seq. See Parsons & Whittemore Overseas Co. v. Societe Generale de L'Industrie Du Papier (RAKATA), 508 F.2d 969, 976 (2d Cir.1974).

P-J argues the arbitral's...