Supreme Court of the United States · Official docket →
Beijing Shougang Mining Investment Company, Ltd., et al. v. Mongolia
Paid petition · United States Court of Appeals for the Second Circuit, No. 19-4191 · judgment August 26, 2021
Before the decision, about 1.5× the 4.1% base rate. The model weighted this up for a Second Circuit decision below, a circuit split argued in the petition, and a business petitioner.
Question presented
It is settled that courts decide independently (i.e., de novo) whether a given dispute is arbitrable unless the parties have agreed to give the arbitrator the “primary” power to decide arbitrability. In First Options of Chicago, Inc. v. Kaplan, this Court held that, in deciding “whether a party has agreed that arbitrators should decide arbitrability,” courts must distinguish between (1) “allowing the arbitrator to make an initial (but independently reviewable) arbitrability determination” and (2) agreeing “to be effectively bound” by an arbitrator’s arbitrability ruling. 514 U.S. 938, 944, 946–47 (1995). “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so.” Id., at 944 (cleaned up; emphasis added). Simply “arguing the arbitrability issue to an arbitrator” is not enough; it “does not indicate clear willingness to arbitrate that issue, i.e., a willingness to be effectively bound by the arbitrator’s decision” on arbitrability. Id., at 946. The question presented is: Whether, as the Second Circuit held, participating in arbitration—including agreeing to a scheduling order as to the timing of jurisdictional objections and making arguments about jurisdiction to the arbitrators—is sufficient to show an agreement to arbitrate arbitrability, and thereby forgo the default de novo standard that governs judicial review of arbitrator decisions on arbitrability.
Counsel of record
For petitioner
Vincent Gregory Levy
Holwell Shuster & Goldberg, LLP
For respondent
Daniel Mumford Perry
Milbank LLP
Proceedings
- Jun 27 2022Motion for leave to file amicus brief filed by Professor George A. Bermann GRANTED.
- Jun 27 2022Petition DENIED.
- Jun 07 2022DISTRIBUTED for Conference of 6/23/2022.
- Jun 03 2022Reply of Beijing Shougang Mining Investment Company, Ltd., et al. not accepted for filing. (Duplicate submission)(June 07, 2022)
- Jun 03 2022Reply of petitioners Beijing Shougang Mining Investment Company, Ltd., et al. filed. (Distributed)
- Jun 01 2022Waiver of the 14-day waiting period for the distribution of the petition under Rule 15.5 filed by petitioner.
- May 31 2022Brief of respondent Mongolia in opposition filed.
- Apr 29 2022Brief amici curiae of Arbitration Scholars and Practitioners filed.
- Apr 29 2022Brief amicus curiae of New York City Bar Association filed.
- Apr 25 2022Motion to extend the time to file a response is granted and the time is extended to and including May 31, 2022. See Rule 30.1.
- Apr 22 2022Motion to extend the time to file a response from April 29, 2022 to May 29, 2022, submitted to The Clerk.
- Mar 30 2022Response Requested. (Due April 29, 2022)
- Mar 25 2022Response to motion from respondent Mongolia filed.
- Mar 23 2022DISTRIBUTED for Conference of 4/14/2022.
- Mar 23 2022Motion for leave to file amicus brief filed by Professor George A. Bermann. (Distributed)
- Mar 18 2022Blanket Consent filed by Petitioner, Beijing Shougang Mining Investment Company, Ltd., et al.
- Mar 12 2022Waiver of right of respondent Mongolia to respond filed.
- Mar 11 2022Petition for a writ of certiorari filed. (Response due April 14, 2022)
- Nov 19 2021Application (21A163) granted by Justice Sotomayor extending the time to file until March 11, 2022.
- Nov 16 2021Application (21A163) to extend the time to file a petition for a writ of certiorari from January 12, 2022 to March 11, 2022, submitted to Justice Sotomayor.