Beijing Shougang Mining Investment Company Ltd v Mongolia - US Supreme Court Docket No 21-1244 - Reply of Beijing Shougang Mining Investment Company Ltd - 3 June 2022
REPLY IN SUPPORT OF PETITION FOR CERTIORARI
Although Respondent's brief in opposition purports to do otherwise, it effectively concedes that the Second Circuit's holding undoes First Options--a fact that none of its red herrings, irrelevancies, and mischaracterizations could obscure.
Thus, Respondent says the decision below has "clarif[ied] for future litigants how U.S. courts will interpret utter silence on the question of who should decide arbitrability[.]" Opp. 24 (emphasis added). Following the Second Circuit's decision, as Respondent explains, parties must "signal in some way that they want this question reserved for a court." Id., at 24-25.
Therein lies the rub. First Options held precisely the opposite: "[T]he law treats silence or ambiguity about the question `who (primarily) should decide arbitrability' differently from the way it treats silence or ambiguity about the question `whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement'--for in respect to this latter question the law reverses the presumption." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-45 (1995). As this Court explained, "[i]f the contract is silent on the matter of who primarily is to decide `threshold' questions about arbitration," then "courts presume that the parties intend courts, not arbitrators, to decide what we have called disputes about `arbitrability.'" BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34 (2014) (emphases added).
Respondent not only ignores the First Options presumption governing the who-primarily-decides question but, even more importantly, the strength of that presumption. That presumption cannot be overcome with anything less than "clear and unmistakable" evidence. And Respondent wholly disregards the critical distinction this Court drew in First Options between (a) the right to argue arbitrability to a tribunal, and (b) the right of the party objecting to the tribunal's arbitrability determination to de novo judicial review.
Respondent has no cogent response to the Second Circuit's fundamental conflict with this Court's clear instructions. So it resorts to irrelevancies and distractions. It argues First Options involved an arbitration respondent rather than a claimant, and that the `arbitrability' question here is unusual in that it concerns the right to obtain relief under a treaty. None of this is relevant. Indeed, Respondent's attempt to marshal a parade of distinguishing facts is detached from the Second Circuit's actual, broad reasoning.
Moreover, the question presented is critically important. The decision below undermines the foundation of arbitration--mutual agreement to arbitrate only those disputes to which the parties agreed. It also places the Second Circuit out of step with other international-arbitration centers, contravening the federal interest in uniformity reflected in the New York Convention. This is particularly troubling for the Circuit that is home to the premier international center of arbitration in the United States--New York. The Court should grant the petition, and summarily reverse.