19-1111
China Shipping Container Lines v. Big Port Service

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
5th day of March, two thousand twenty.

Present:
            DEBRA ANN LIVINGSTON,
            RICHARD J. SULLIVAN,
            WILLIAN J. NARDINI,
                  Circuit Judges.
_____________________________________

CHINA SHIPPING CONTAINER LINES CO. LTD.,

                         Petitioner-Appellee,

                 v.                                                   19-1111

BIG PORT SERVICE DMCC,

                  Respondent-Appellant.
_____________________________________

For Petitioner-Appellee:                        GINA M. VENEZIA (Michael J. Dehart, on the brief),
                                                Freehill Hogan & Mahar LLP, New York, NY

For Respondent-Appellant:                       PETER SKOUFALOS, Brown Gavalas & Fromm LLP,
                                                New York, NY

        Appeal from a judgment of the United States District Court for the Southern District of

New York (Torres, J.).


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         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

         Big Port Service DMCC (“BPS”) appeals from a March 29, 2019 judgment enjoining

arbitration between BPS and China Shipping Container Lines Co. Ltd. (“CSCL”) regarding the

supply of marine fuel oil to a CSCL vessel.            The district court recognized a decision of a

Singaporean court regarding the dispute between the parties (the “Singapore Judgment”), accorded

that decision preclusive effect, and concluded that CSCL could not be forced to arbitrate because

there was no binding arbitration agreement between CSCL and BPS. BPS appeals, challenging

various aspects of the district court’s ruling.        We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

         I.       Subject Matter Jurisdiction

         The district court concluded that it had subject matter jurisdiction over this dispute pursuant

to our decision in Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59

(2d Cir. 2012).     “We review the question of subject-matter jurisdiction de novo.” City of New

York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 126 (2d Cir. 2011). BPS contends that the

district court erred in applying Garanti because that case addressed the proper approach to subject

matter jurisdiction in declaratory judgment actions involving issues of federal law, not, as here,

the issues of contract law pertinent to arbitration.    We disagree.

         BPS’s jurisdictional argument is, in fact, foreclosed by Garanti.         Indeed, the precise

argument BPS now advances was put forth by AM, the defendant in Garanti, and we rejected it.

See Garanti, 697 F.3d at 62.         Here, as in Garanti, the parties must be rearranged into a

hypothetical coercive action that is the “mirror image” of the suit actually brought by CSCL. Id.

at 66.        That “mirror image” suit—BPS suing CSCL to compel arbitration on a maritime



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contract—is one over which the federal courts would have jurisdiction. See id. at 71 (“Although

GFK, the plaintiff in this case, disclaims the existence of a maritime contract, there is no question

but that we would have jurisdiction over AM’s hypothetical coercive suit to enforce the contract.

Thus, we have jurisdiction over this declaratory judgment action as well.”).           Accordingly,

jurisdiction is proper in the instant declaratory judgment action.

        II.     Recognition of the Singapore Judgment

        BPS next argues that the district court erred in recognizing the Singapore Judgment. BPS

points to two purported shortcomings in the foreign proceedings that supposedly undermine the

propriety of according the foreign judgment comity: the absence of a full and final judgment and

the strong federal policy favoring arbitration. We need not decide whether the proper standard

of review for the district court’s recognition decision is abuse of discretion, see Corporación

Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Emploración y Producción, 832

F.3d 92, 100 (2d Cir. 2016), or de novo, see Diorinou v. Mezitis, 237 F.3d 133, 139–40 (2d Cir.

2001), because BPS’s arguments fail even under de novo review.

        As to BPS’s first argument, the Singapore Judgment resolved the relevant issue here: the

existence of an arbitration agreement between CSCL and BPS.              BPS conceded before the

Singaporean courts that this question had to be decided in that proceeding, and BPS actively

litigated the issue.   Moreover, the Singapore action was not merely an in rem proceeding related

to the arrest of CSCL’s vessel. Rather, BPS sought damages arising out of its supposed contract

with CSCL.      Accordingly, the Singapore Judgment was not limited, as BPS now contends, but

was a full decision addressing the existence of the arbitration agreement at issue.

        Turning to BPS’s second argument, there is a “liberal federal policy favoring arbitration.”

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (citation omitted).         But that policy



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does not elevate arbitration agreements above other contracts; it solely requires enforcement,

“according to their terms, of private agreements to arbitrate.” Volt Info. Scis., Inc. v. Bd. of Trs. of

Leland Stanford Junior Univ., 489 U.S. 468, 476 (1989); see also New York v. Oneida Indian

Nation of N.Y., 90 F.3d 58, 61 (2d Cir. 1996) (“[F]ederal policy alone cannot be enough to extend

the application of an arbitration clause far beyond its intended scope.” (citation omitted)).        As

BPS concedes, American courts vindicate the policy favoring arbitration through judicial

proceedings that assess whether an agreement to arbitrate exists.     And that is precisely the process

BPS received in Singapore.       The policy favoring arbitration does not require that BPS get a

second hearing on this issue in the United States.       BPS’s argument to the contrary is without

merit.

         III.   Preclusion and Estoppel

         BPS next argues that, even if the district court properly recognized the Singapore

Judgment, it erred in according it preclusive effect.          Specifically, BPS contends that the

Singapore court neither considered relevant U.S. law nor ruled on arbitrability, and that the

question of arbitrability was not necessary to support the Singapore Judgment.             “[W]e . . .

generally review de novo a district court’s ruling on [issue] preclusion.” Hoblock v. Albany Cty.

Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005); see also Diorinou, 237 F.3d at 140. Collateral

estoppel or issue preclusion “applies when (1) the identical issue was raised in a previous

proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the

party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was

necessary to support a valid and final judgment on the merits.” Republic of Ecuador v. Chevron

Corp., 638 F.3d 384, 400 (2d Cir. 2011).      Applying those factors here, we agree with the district




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court’s conclusion that the Singapore Judgment precludes BPS from relitigating the existence of

an arbitration agreement between it and CSCL.

        First, a foreign court need not consider or apply domestic law so long as there is ultimately

an identity of issues. In other words, “the legal standards to be applied must . . . be identical,”

but the foreign court need not apply a specific body of law. Matusick v. Erie Cty. Water Auth.,

757 F.3d 31, 48–49 (2d Cir. 2014) (citation omitted); see also Greene v. United States, 79 F.3d

1348, 1353 (2d Cir. 1996).     Here, the legal standards applied were substantively the same and the

agency principles applied by the Singapore court are in accord with New York agency law.

Accordingly, there is an identity of issues.

        Next, the question of arbitrability was actually litigated in Singapore and was necessary to

the Singapore Judgment.       As explained above, BPS sought money damages from CSCL and was

not simply seeking a provisional remedy when it commenced litigation in Singapore.               The

Singapore court dismissed BPS’s suit on the ground that it did not enter into an agreement with

CSCL.     Thus, the issue was actually litigated and decided in Singapore.         And because the

foreign action was dismissed based on the absence of a contract between CSCL and BPS, that

decision was necessary to the judgment.

        BPS also suggests that it was not able to fully and fairly litigate in Singapore because it

never obtained discovery.     Not so.   All the emails BPS now seeks to present to the district court

were already in its possession at the time of the Singapore action as they were either to or from

BPS employees.      BPS was “require[d] . . . to bring forward all evidence in support of [its claim]

in the initial proceeding.”    Restatement (Second) of Judgments § 27 illus. 4.    BPS filed briefs,

argued its case, and appealed the Singapore decision.    Under these circumstances, BPS had a full

and fair opportunity to litigate.



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       Finally, BPS represented in the district court, while seeking a stay of the district court

proceedings in favor of the Singapore litigation, that the decision of the Singapore courts would

be determinative on the issue of whether CSCL could be required to arbitrate.    CSCL argues that,

as a result, BPS is estopped from contending that the result of the Singaporean action is immaterial

to this question.   Because we conclude that the district court properly accorded the Singapore

Judgment preclusive effect, we need not address this issue.

       IV.     Permanent Injunction

       BPS also broadly asserts that the district court erred by permanently enjoining the

arbitration between CSCL and BPS.      “When reviewing an order granting either a preliminary or

a permanent injunction, we review the district court’s legal holdings de novo and its ultimate

decision for abuse of discretion.” Goldman, Sachs & Co. v. Golden Empire Sch. Fin. Auth., 764

F.3d 210, 214 (2d Cir. 2014).   We discern no error in the district court’s decision.

       “Federal courts generally have remedial power to stay arbitration.”              Id. at 213.

Specifically, “where the court determines . . . that the parties have not entered into a valid and

binding arbitration agreement, the court has the authority to enjoin the arbitration proceedings.”

In re Am. Express Fin. Advisors Sec. Litig., 672 F.3d 113, 140 (2d Cir. 2011); see also Societe

Generale de Surveillance, S.A. v. Raytheon European Mgmt. & Sys. Co., 643 F.2d 863, 868 (1st

Cir. 1981) (Breyer, J.). As discussed above, the district court properly accorded preclusive effect

to the Singapore Judgment, which held that BPS and CSCL had not entered into a valid and binding

arbitration agreement.    Thus, the district court had the authority to permanently enjoin the

arbitration proceeding.

                                         *       *       *




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       We have considered BPS’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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