International Commercial Arbitration & Anti-Suit Injunctions: When a Party Eschews Arbitration in the United States and Runs to a Foreign Court

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I. INTRODUCTION: GETTING AROUND YES

Commercial arbitration has grown extensively over the past few decades, making it one of the more popular methods of dispute resolution in the international realm. A recent survey listed 40 recent or ongoing international arbitrations, each valued at over $200 million. ^[1] But because of its confidentiality, arbitration lives comfortably in the shadow of the legal world, not attracting nearly as much attention as litigation when it comes to exploring issues like strategy and secondary prevention. After all, it is difficult to discuss case strategy when most of the cases are confidential. But, like litigation, arbitrations are won and lost based on strategy and experience.

Unlike pure litigation, however, arbitrations often live a double life. A dispute in arbitration can simultaneously wind its way through several public courts in different countries, both in the form of concurrent litigation and requests for court assistance through anti-suit injunctions or similar measures. A review of arbitration treatises and U.S. case law reveals just how popular it has become to use the court to compel arbitration, or alternatively, to attempt to have an arbitration provision declared invalid. ^[2] The latter approach is so basic and traditional that it is probably safe to say that it is the most commonly attempted strategy for getting around an arbitration agreement. ^[3]

Other strategies for getting around an arbitration agreement have also developed—some more legitimate than others—probably because asking the court to set aside a valid arbitration provision is rarely successful. U.S. courts have sent very strong messages that they favor arbitration and will enforce agreements in most cases. ^[4] Some of the more creative strategies for avoiding arbitration include: (1) running to a friendly foreign court that does not favor arbitration, (2) expanding the suit beyond the scope of the arbitration agreement, and (3) initiating criminal proceedings (which is, technically, expanding the suit way beyond the scope of the arbitration agreement). The first of these three, foreign proceedings and the use of anti-suit injunctions against them, is the main topic of this article. The other two, however, deserve a brief mention.

Expanding the suit beyond the scope of what is arbitrable may involve filing tort claims or a RICO action in court, hoping the judge allows the suit to go forward on a theory that such claims do not fall within the agreement to arbitrate. Expanding the suit may also include changing the parties involved, so as to bring an action against someone connected to the dispute who did not agree to arbitrate. Either of these strategies may be appropriate in some situations, like when a party behind the scenes committed fraud and deception so far-reaching that only the powers of the court, as opposed to an arbitration tribunal, can untangle the mess.

For example, in 1998 the Motorola Credit Corporation, Nokia Corporation and ABN Amro Bank loaned over $2.7 billion to two telecom companies, Telsim and Rumeli, to set up a Turkish wireless network. ^[5] Telsim and Rumeli were controlled by the Uzans, one of Turkey’s wealthiest families, who allegedly siphoned off hundreds of millions of dollars for personal or unexplained uses, ultimately causing Telsim and Rumeli to default on the loan. Even though agreements to arbitrate existed between Motorola and the two Turkish companies, Motorola chose to sue the Uzans for fraud in federal court in the Southern District of New York (S.D.N.Y.). The court allowed the suit to go forward and denied the Uzans’ motion to compel arbitration because Motorola never agreed to arbitrate with the Uzans, ^[6]only with Telsim and Rumeli. The court ultimately found that the Uzans perpetuated a massive fraud, and were personally liable for over $4 billion in compensatory and punitive damages, as well as interest. ^[7] The S.D.N.Y. award was recently affirmed by the Court of Appeals for the Second Circuit. ^[8] On a side note, Motorola is still in arbitration with the Turkish companies.

It should be noted, however, that changing a suit to preclude arbitration is not always easy. A broadening of what is arbitrable seems to have taken place in recent years. The U.S. Supreme Court has ruled that both domestic and international RICO claims are arbitrable and, specifically, there is nothing in RICO’s text or legislative history to demonstrate congressional intent to make an exception when it comes to arbitration. ^[9] In a more recent decision, the U.S. Supreme Court also ruled that statutory claims, with few exceptions, may be the subject of an arbitration agreement. ^[10]The magic behind Motorola’s case occurred through their choice to expand the suit to include the Uzans. When they also attempted to bring a RICO action, it was ultimately stayed because the claim was not ripe, in part because arbitration against the Turkish companies was still available as a potential remedy. ^[11]

Interestingly enough, Motorola also provides a great example of the third method for getting around an agreement to arbitrate—filing criminal action—only in reverse, because a criminal claim recently filed against them in India may ultimately circumvent an existing arbitration agreement. To make a long story short, Iridium India filed a criminal action in India’s court even though an agreement to arbitrate exists. ^[12] The results are still unclear because the dispute is ongoing. It stands as a poignant reminder, however, that criminal proceedings and arbitration agreements do not mix and probably never will. If a party can convince a court, foreign or domestic, that criminal proceedings are justified, the court may not look twice at an existing arbitration agreement when hearing the case. Because national law varies greatly from country to country, it is not unheard of for criminal actions to result in civil-like remedies, and crossover into the realm of damages and compensation—something that closely resembles what arbitration traditionally entails.

This brings us full circle to method number one: When a party runs to a foreign court to avoid an agreement to arbitrate. While there is not much that can be done in the above criminal situation, as it is not very likely that a U.S. court will issue an anti-suit injunction against criminal proceedings in foreign countries, it is possible for a U.S. court to issue anti-suit injunctions against civil proceedings in foreign countries—especially when they threaten the jurisdiction of the court. The question then becomes: How effective are anti-suit injunctions in the United States against parties who file civil proceedings in a foreign court to avoid arbitration?

II. ANTI-SUIT INJUNCTIONS AGAINST FOREIGN PROCEEDINGS: WHEN A PARTY TO AN ARBITRATION AGREEMENT RUNS TO A FOREIGN COURT

Assume that a party to a valid international arbitration agreement does not want to arbitrate, and instead files a civil claim in a foreign court as a way to convolute the proceedings or because the foreign jurisdiction is more advantageous. The other party can do a number of things, preferably all at once. They can immediately file for arbitration in the appropriate venue as defined by the agreement to arbitrate; they can petition the foreign court to dismiss the case on the grounds it should be in arbitration; and they can ask a court of competent jurisdiction to compel arbitration and issue an anti-suit injunction against the foreign proceedings.

Defined in simple terms, an anti-suit injunction is an order from the court demanding that the parties withdraw from the foreign proceedings. ^[13] Note that the order is directed against the parties and not against the foreign court. ^[14] As with any motion, if the parties choose to ignore it they may find themselves in contempt. ^[15] While parties to an arbitration agreement can waive their rights to arbitrate by filing for litigation, parties are generally safe to seek interim measures, such as an order compelling arbitration or an anti-suit injunction, without waiver becoming an issue. ^[16]

The United States has a well-defined history regarding anti-suit injunctions against foreign proceedings, though mostly in the area of common law rather than legislation. ^[17]Appellate courts are split regarding when such measures are appropriate, leaving the issue ripe for a Supreme Court decision. ^[18] Roughly half of the circuits apply a conservative or restrictive standard, while the other half apply a liberal or lax standard. ^[19] The Court of Appeals for the Second, Third, Sixth, and District of Columbia Circuits (and perhaps the Eleventh Circuit) use a restrictive approach and rarely allow injunctions against foreign litigation. ^[20] These courts will issue an anti-suit injunction only to “protect jurisdiction or an important public policy,” ^[21] and will usually decline to do so for comity reasons even when the court finds that it has authority to enjoin foreign proceedings. ^[22] A duplication of judicial proceedings is not enough to justify an anti-suit injunction, nor is hardship or vexatious and harassing litigation. ^[23]

All is not dark, however, for those who would seek anti-suit injunctions in the more restrictive circuits. In a recent S.D.N.Y. decision, the court both compelled arbitration and issued an anti-suit injunction against foreign litigation. ^[24] In the earlier-mentioned case involving Motorola and the Uzans, the S.D.N.Y. court also issued an anti-suit injunction against foreign proceedings and even foreign arbitrations. ^[25] Very few other examples exist where courts that apply a conservative or restrictive approach have enjoined foreign proceedings. ^[26]

Conversely, the Court of Appeals for the Fifth, Seventh, and Ninth Circuits (and perhaps the Eighth Circuit) apply a liberal or lax standard when enjoining foreign proceedings. ^[27] These courts will generally issue an injunction when “policy in the enjoining forum is frustrated” or the foreign proceeding are vexatious and threaten the court’s jurisdiction. ^[28] In determining whether foreign proceedings are vexatious or oppressive, the court will usually look at several factors, including “(1) inequitable hardship resulting from the foreign suit, (2) the foreign suit’s ability to frustrate and delay the speedy and efficient determination of the cause, and (3) the extent to which the foreign suit is duplicitous of the litigation in the United States.” ^[29]

A recent survey of foreign parallel litigation found that such proceedings were allowed to continue far more often by the restrictive or conservative circuits, as opposed to the courts applying a liberal or lax standard. ^[30] While the liberal circuits appear to be more open to considerations of vexatious and harassing claims, which certainly include parties trying to get around a valid arbitration agreement, it should be noted that both liberal and conservative circuits greatly emphasize international comity in their decisions. ^[31]

The U.S. Supreme Court defined comity as “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.” ^[32] The U.S. Supreme Court further stated:

“The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts. . . . We cannot have trade and commerce in world markets and international waters on our terms, governed by our laws, and resolved in our courts.” ^[33]

Based on this ruling, many courts—especially those that apply the conservative or restrictive standard—have been hesitant to cross the comity threshold and issue anti-suit injunctions except in extreme situations. ^[34] Again, the primary difference here is that the liberal circuits tend to balance comity concerns with concerns over vexatious and oppressive foreign litigation, whereas the restrictive circuits tend to place comity far above other concerns. ^[35]

Legislation in the United States appears scant when it comes to specific language regarding anti-suit injunctions and foreign litigation. ^[36] It is well established, however, through common law that “federal courts have the power to enjoin persons subject to their jurisdiction from prosecuting foreign suits.” ^[37] Moreover, “absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction.” ^[38] Regarding the New York Convention and Chapter 2 of the Federal Arbitration Act (which implements the convention in the United States), federal courts have jurisdiction to hear such cases, ^[39] and there is nothing in the convention or subsequent legislation that “expressly limits the inherent authority of a federal court to grant injunctive relief with respect to a party over whom it has jurisdiction.” ^[40]

In short, U.S. courts have ruled that the New York Convention is mute on whether they can enjoin foreign proceedings, and have decided that they have such authority based on well-established common law. This, of course, raises the question of what constitutes jurisdiction, which is discussed below. As a side note, the New York Convention, which is codified under Chapter 2 of Title 9 of the United States Code, also allows a court of competent jurisdiction to compel arbitration both within and outside the United States in accordance with a valid arbitration agreement. ^[41] A court must also stay or dismiss an action if the New York Convention requires arbitration of the underlying dispute. ^[42]

Because international arbitration and anti-suit measures involve multiple jurisdictions, and because the United States is sometimes willing to enjoin foreign proceedings when they have jurisdiction over the parties, the next question arises: When does a court in the United States have jurisdiction over the parties and their dispute? In the United States, it is important to remember that anti-suit injunctions are really an issue separate from arbitration and arbitration laws altogether. The jurisdiction required for such measures is based in federal common law and statutes rather than the Federal Arbitration Act or the New York Convention, both of which remain silent on the issue. ^[43]

In the United States, the simple and most well-known answer is that in order to be subject to personal jurisdiction, and thus anti-suit measures, a defendant’s conduct must be enough to “reasonably anticipate being haled into court there.” ^[44] If there is a challenge, the burden is on the plaintiff to show sufficient ties. ^[45] Simply stated, “a nexus between the defendant, the forum and the litigation is the essential foundation of in personam jurisdiction.” ^[46]

In the United States, personal jurisdiction may be general or specific in nature. General jurisdiction applies when a defendant has continuous and systematic contacts with the forum state, ^[47] while specific jurisdiction applies when a non-resident defendant has “purposefully directed” his activities at someone within the forum which results in injury. ^[48] In contract disputes, such as those containing arbitration agreements, “courts should inquire whether the defendant’s contacts with the forum were instrumental in either the formation of the contract or its breach.” ^[49] Parties who “reach out” and create “continuing relationships and obligations with citizens of another state,” generally regardless of whether through electronic or physical means, are usually subject to regulation by that forum’s courts. ^[50]

Pragmatically speaking, a good rule of thumb is as follows: When one of the parties to the dispute is a U.S. citizen or corporation, and there are ties between them and a foreign party in the form of an ongoing contractual relationship, sufficient ties probably exist for a federal court in the U.S. to have jurisdiction over the parties and thus issue an anti-suit injunction against parallel foreign proceedings. If the foreign party is the defendant, the contract and subsequent commercial ties with the U.S. plaintiff is probably enough to establish personal jurisdiction, providing that the dispute is genuinely related to the contract. Conversely, if the foreign party is the plaintiff, they submit to personal jurisdiction when bringing suit in the United States, which already has jurisdiction over the resident defendant in at least one federal district (and perhaps several others). If neither party is a U.S. citizen or individual, it is going to be difficult to establish the contacts and ties required for personal jurisdiction over the defendant in a U.S. court.

Parties can also voluntarily submit to personal jurisdiction of the court either by not contesting jurisdiction (less common for obvious reasons) or through a forum-selection clause in their contract (much more common). ^[51] When considering choice-of-forum clauses, however, the court usually takes into consideration whether the defendant has established minimum contacts with the forum. ^[52] Choice-of-forum and choice-of-law provisions usually confer jurisdiction only when other evidence supports minimum contacts, ^[53] though at least one circuit has ruled that a choice-of-law clause alone was enough to exercise jurisdiction over a defendant. ^[54]

Because an anti-suit injunction is aimed toward a party to the dispute rather than the foreign court, parties that choose to ignore the order may be faced with contempt in the form of fines, imprisonment, or both. In the United States, the court can issue both criminal and civil contempt orders, depending on what it is trying to accomplish. ^[55] If its purpose is punitive or the order is “designed to vindicate the authority of the court,” then the order is criminal, but when the court is coercive or remedial in its purpose, the order is civil. ^[56] Often when a party chooses to ignore an anti-suit injunction, the court will find it in civil contempt in an effort to coerce the parties into compliance. ^[57] This can take the form of fines or indefinite imprisonment. ^[58]

In the case example mentioned in the introduction involving Motorola and the Uzans, the court found the Uzans in civil contempt, levied fines, and issued arrest warrants. ^[59] Ultimately, this impacted the Uzans in a very powerful way. When the Uzans appealed the billion-dollar judgment against them, Motorola was successful in having it dismissed under the fugitive disentitlement doctrine, which essentially says that a fugitive from the authority of the court is no longer entitled to rely on the court’s assistance in further civil litigation. ^[60] This is just one example of how civil contempt orders can severely impact proceedings in the United States.

It should be noted that while an anti-suit injunction applies to the parties and not the foreign court, they effectively restrict the foreign court’s ability to exercise jurisdiction. ^[61] If the foreign court responds with a similar injunction, the parties may find themselves unable to obtain any remedy in either forum because of the risk of sanctions and penalties on both sides. ^[62] United States courts recognize this problem and have hesitated in granting anti-suit injunctions for this reason. ^[63] Because sovereign nations seldom enforce judgments from the courts of other nations, there is arguably little prospect of enforcing anti-suit injunctions and subsequent contempt orders from the United States in foreign jurisdictions.

III. CONCLUSION: COMBINING THE POWERS OF THE COURT AND THE TRIBUNAL INTO A COHESIVE STRATEGY

The outcome in any complex international dispute will depend upon the overall strategy embraced by the parties, including how and when to mix litigation and arbitration. For this reason, it is paramount for an attorney to fully understand the complex interplay between the U.S. court system, all foreign courts, the arbitration tribunal, the New York Convention, and the numerous other aspects that go into winning and enforcing an international arbitration award. In certain situations, anti-suit injunctions from the right court can be a powerful tool. As the Uzans discovered, ignoring a court order can be a costly mistake.

END NOTES

1 See Michael D. Goldhaber, Big Arbitrations, The American Lawyer, Summer 2003 .

2 See generally Republic of Nicaragua v. Standard Fruit Co., 937 F.2d 469 (9th Cir. 1991); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967); I.S. Joseph Co. v. Michigan Sugar Co., 803 F.2d 396, 399-400 & n.2 (8th Cir. 1986) (“If there is in fact a dispute as to whether an agreement to arbitrate exists, then that issue must first be determined by the court as a prerequisite to the arbitrator taking jurisdiction.”); Interocean Shipping Co. v. Nat’l Shipping & Trading Corp., 462 F.2d 673, 676 (2d Cir. 1972); In re Kinoshita & Co., 287 F.2d 951, 953 (2nd Cir. 1961). See also generally Gary B. Born, International Commercial Arbitration: Commentary and Materials (2d ed. 2001).

3Because arbitration is grounded in contract law, there are myriad ways to attack an arbitration provision, each of which involve the court. Common defenses include (1) contracts of adhesion (see generally Keating v. Superior Court: Oppressive Arbitration Clauses in Adhesion Contracts, 71 Cal. L. Rev. 1239, 1247 (1983); Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv. L. Rev. 1174 (1983); John L. DiFiore, Problems in Alternative Dispute Resolution: Arbitration Agreements as Contracts of Adhesion in Consumer Securities Disputes, 93 Com. L. J. 259 (1988)), (2) procedural or substantive unconscionability (Jacklich v. Baer, 135 P.2d 179, 183 (3d Dist. 1943); Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282 (9th Cir. 1988)), (3) fraud in the factum (Cancanon v. Smith Barney, Harris, Upham & Co., 805 F.2d 998 (11th Cir. 1986); Kyung In Lee v. Pacific Bullion (New York) Inc., 788 F.Supp. 155 (E.D.N.Y. 1992) (“if a party’s signature were forged on a contract, it would be absurd to require arbitration”)), (4) fraud in the inducement (Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967) (holding that a claim of fraud against an underlying contract must be submitted to arbitration, while fraud specifically aimed at an arbitration clause may be adjudicated by the court)); (5) illegality (Restatement (Second) Contracts §§178-79, 192 (2004); Gary B. Born, International Commercial Arbitration: Commentary and Materials 208-09 (2d ed. 2001)); and (6) waiver (First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995)).

4 See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (holding that any doubts concerning the scope of arbitrable issues should be resolved in favour of arbitration); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960) (arbitration must be compelled unless the court can say with “positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute”); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945 (1995) (the FAA must “insist upon clarity before concluding that the parties did not want to arbitrate a related matter”); Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983); Mediterranean Enter., Inc. v. Ssangyong Corp., 708 F.2d 1458 (9th Cir. 1983); Progressive Cas. Ins. Co. v. CA Reaseguradora Nacional de Venezuela, 991 F.2d 42, 48 (2d Cir. 1993); Chevron U.S.A. Inc. v. Consol. Edison Co., 872 F.2d 534, 537-38 (2d Cir. 1989) (“even a narrow arbitration clause must be construed in light of the presumption in favor of arbitration”).

5See Motorola Credit Corp. v. Uzan, 274 F. Supp. 2d 481 (S.D.N.Y. 2003).

6 See Motorola Credit Corp. v. Uzan, No. 02 Civ. 666 (JSR), 2003 U.S. Dist. LEXIS 111, at *9 (S.D.N.Y. Jan. 6, 2003).

7 See Motorola, 274 F. Supp. at 274-75.

8 Kroll Associates, Inc. v. Unikom Iletism Hizmetleri, No. 02-cv-666 (2nd Cir. Sept. 26, 2003) (publication pending).

9 See Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 238-42 (1987).

10 See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).

11 See Motorola Credit Corp. v. Uzan, 322 F.3d 130, 132 (2003).

12 Abhrajit Gangopadhyay, Iridium India Seeks $200-m Damages from Motorola, The Hindu Business Line, Nov. 15, 2002 .

13 See generally General Electric Co. v. Deutz AG, 270 F.3d 144, 156 (2001); Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 366 (2003).

14 Margarita Trevino de Coale, Stay, Dismiss, Enjoin, or Abstain?: A Survey of Foreign Parallel Litigation in Federal Courts in the United States, 17 B.U. Int’l L.J. 79, 91 (1999).

15 See generally Karaha Bodas Co., L.L.C., 335 F.3d at 374-75.

16 Born, supra note 2, at 239-42.

17 Trevino de Coale, supra note 13, at 85; see also General Electric Co., 270 F.3d at 156-59; Karaha Bodas Co., L.L.C., 335 F.3d at 366-71.

18 Trevino de Coale, supra note 13, at 90-91; see also General Electric Co., 270 F.3d at 160-61.

19 Trevino de Coale, supra note 13, at 90-91; see also General Electric Co., 270 F.3d at 160-61.

20See General Electric Co., 270 F.3d at 160-61; see also Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1354-59 (1992); China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 36 (2nd Cir. 1987); Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937-45 (D.C. Cir. 1984); see also Trevino de Coale, supra note 13, at 93.

21 See General Electric Co., 270 F.3d at 161.

22 See id. at 160; see also Republic of Phil. v. Westinghouse Electric Corp., 43 F.3d 65, 75 (3d Cir. 1995) (holding that lower court had authority to issue an injunction against a foreign party, but overruling decision based primarily on comity concerns).

23 See General Electric Co., 270 F.3d at 161.

24 See Smoothline, Ltd. v. North Am. Foreign Trading Corp., No. 00 Civ. 2798 (DLC), M 19-375, 2002 U.S. Dist. LEXIS 3123, at *20 (S.D.N.Y. Feb 27, 2002).

25 See Motorola Credit Corp. v. Uzan, No. 02 Civ. 666 (JSR), 2003 U.S. Dist. LEXIS 111, at *9 (S.D.N.Y. Jan. 6, 2003).

26 See generally Farrell Lines Inc. v. Columbus Cellopoly Corp., 32 F. Supp. 2d 118 (1997).

27 See General Electric Co., 270 F.3d at 160; see also Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626-28 (5th Cir. 1996); Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425, 431-32 (7th Cir. 1993); Seattle Totems Hockey Club, Inc. v. Nat’l Hockey League, 652 F.2d 852, 856 (9th Cir. 1981).

28 See General Electric Co., 270 F.3d at 160.

29 See Karaha Bodas Co., L.L.C., 335 F.3d at 366.

30 Trevino de Coale, supra note 13, at 96.

31 See General Electric Co., 270 F.3d at 160; Karaha Bodas Co., L.L.C., 335 F.3d at 371.

32 See Hilton v. Guyot, 159 U.S. 113, 164 (1894).

33 See THE BREMEN v. Zapata Off-Shore Co., 407 U.S. 1, 9 (1972).

34 See General Electric Co., 270 F.3d at 160; Karaha Bodas Co., L.L.C., 335 F.3d at 371.

35 See General Electric Co., 270 F.3d at 160; Karaha Bodas Co., L.L.C., 335 F.3d at 371.

36 Trevino de Coale, supra note 13, at 85; see also General Electric Co., 270 F.3d at 156-59; Karaha Bodas Co., L.L.C., 335 F.3d at 366-71.

37 See Kaepa, Inc., 76 F.3d at 626; see also Gau Shan Co., 956 F.2d at 1352; China Trade & Dev. Corp., 837 F.2d at 35; Laker Airways Ltd., 731 F.2d at 926; Seattle Totems Hockey Club, Inc., 652 F.2d at 855.

38 See Califano v. Yamasaki, 442 U.S. 682, 705 (1979) (citing Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)).

39 See Karaha Bodas Co., L.L.C., 335 F.3d at 365 (citing 9 U.S.C. § 203 (2003)).

40 See Karaha Bodas Co., L.L.C., 335 F.3d at 365.

41 See 9 U.S.C. § 206 (2003).

42 See id.; see also Matthew B. Cobb, Domestic Court’s Obligations to Refer Parties to Arbitration, 17 Arb. Int’l 313 (2001).

43 Trevino de Coale, supra note 13, at 85; see also General Electric Co., 270 F.3d at 156-59; Karaha Bodas Co., L.L.C., 335 F.3d at 366-71.

44 See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

45 See Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d. Cir. 1992).

46 See General Electric Co., 270 F.3d at 150.

47 See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-16 (1984).

48 See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); Dollar Sav. Bank v. First Sec. Bank of Utah, N.A., 746 F.2d 208 (3d Cir. 1984) (discussing personal jurisdiction).

49 See General Electric Co., 270 F.3d at 150 (citing Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir. 1999)).

50 See Burger King Corp., 471 U.S. at 473-76.

51 See Nat’l Equip. Rental Ltd. v. Szukhent, 375 U.S. 311 (1964) (holding that parties to a contract may agree in advance to submit to the jurisdiction of a given court).

52 See Burger King Corp., 471 U.S. at 475.

53 See Wessels, Arnold & Henderson v. Nat’l Medical Waste, Inc., 65 F.3d 1427, 1434 (8th Cir. 1995); Ting v. Orbit Communication Co., Ltd., 105 F.3d 666 (9th Cir. 1997); Cutco Indus., Inc. v. Naughton, 806 F.2d 361, 367 (2nd Cir. 1986).

54 See Northwestern Nat’l Ins. Co. v. Donovan, 916 F.2d 372, 375 (7th Cir. 1990).

55 See Shillitani v. United States, 384 U.S. 364, 369 (1966); See also 18 U.S.C. § 401 (2003).

56 See In re Hunt, 754 F.2d 1290, 1293 (5th Cir. 1985).

57 See Karaha Bodas Co., L.L.C., 335 F.3d at 375.

58 See Jennifer Fleischer, In Defense of Civil Contempt Sanctions, 36 Colum. J.L. & Soc. Probs. 35, 45 (discussing civil contempt sanctions in the United States).

59 See Motorola Credit Corp. v. Uzan, No. 02 Civ. 666 (JSR), 2002 U.S. Dist. LEXIS 15650, at *17 (S.D.N.Y. Aug. 22, 2002).

60 See Kroll Associates, Inc. v. Unikom Iletism Hizmetleri, No. 02-cv-666 (2nd Cir. Sept. 26, 2003) (publication pending).

61 See Laker Airways Ltd., 731 F.2d at 927; see also Compagnie des Bauxites de Guinea v. Ins. Co. of N. Am., 651 F.2d 877, 887 (3d Cir. 1981); Canadian Filters (Harwich) Ltd. v. Lear-Siegler, Inc., 412 F.2d 577, 578 (1st Cir. 1969).

62 See Peck v. Jenness, 48 U.S. 612, 624-25 (1849).

63 See Laker Airways Ltd., 731 F.2d at 927.