Beijing Shougang Mining Investment Company, Ltd., China Heilongjiang International Economic & Technical Cooperative Corporation, and Qinhuangdaoshi Qinlong International Industrial Company Ltd. (collectively, "Petitioners-Appellants") appeal from the November 25, 2019 order of the U.S. District Court for the Southern District of New York (Ramos, J.) denying their petition to set aside an arbitral award issued by an ad hoc arbitral tribunal constituted under a bilateral investment treaty between Mongolia and the People's Republic of China, and granting Respondent-Appellee Mongolia's cross-petition to confirm the award. Petitioners-Appellants further challenge the district court's rejection of their petition to compel arbitration on the merits. On appeal, Petitioners-Appellants' primary argument is that the district court erred by declining to review the arbitrability of their investment claims de novo before rejecting Petitioners-Appellants' petitions and confirming the arbitral award.
We reject the appeal and hold that Petitioners-Appellants were not entitled to de novo review of the arbitrability of their investment claims. While the bilateral investment treaty in this case does not contain a clear statement empowering arbitrators to decide issues of arbitrability, we hold that Petitioners- Appellants and Respondent-Appellee Mongolia (collectively, the "Parties") nonetheless "clear[ly] and unmistakabl[y]" agreed to submit questions of arbitrability to the arbitral tribunal in the course of the dispute between them. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (alterations and internal quotation marks omitted). First, the Parties reached an agreement at the outset of the arbitration, as confirmed by the arbitral tribunal in its first procedural order, providing that the tribunal would hear jurisdictional issues during a combined jurisdictional and liability phase. In doing so, the Parties agreed to submit issues of arbitrability to the arbitral tribunal in the first instance. Second, Petitioners-Appellants' conduct throughout the remainder of the arbitration further confirms, and in no way casts doubt on, their intent as expressed in that agreement to submit arbitrability issues to the arbitral tribunal. We therefore conclude that the district court properly declined to determine independently the arbitrability of Petitioners-Appellants' investment claims. We further conclude that in reaching their decision on arbitrability, the arbitrators did not exceed their powers, and thus agree with the district court's decision to confirm the award. Accordingly, we AFFIRM.
- OGEL: 1. China Heilongjiang International Economic & Technical Cooperative Corp., 2. Beijing Shougang Mining Investment Company Ltd., and 3. Qinhuangdaoshi Qinlong International Industrial Co. Ltd. v Mongolia - PCA Case No 2010-20 - Award - 30 June 2017
- TDM: 1. China Heilongjiang International Economic & Technical Cooperative Corp., 2. Beijing Shougang Mining Investment Company Ltd., and 3. Qinhuangdaoshi Qinlong International Industrial Co. Ltd. v Mongolia - PCA Case No 2010-20 - Award - 30 June 2017