Pine Top Receivables of Illino v. Banco de Seguros del Estado , 771 F.3d 980 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-1364 & 13-2331
PINE TOP RECEIVABLES OF ILLINOIS, LLC,
Plaintiff-Appellant,
v.
BANCO DE SEGUROS DEL ESTADO,
Defendant-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 6357 — Marvin E. Aspen, Judge.
____________________
ARGUED OCTOBER 30, 2013 — DECIDED NOVEMBER 7, 2014
____________________
Before EASTERBROOK and WILLIAMS, Circuit Judges. 1
PER CURIAM. Pine Top Receivables (“Pine Top”) brought
this action against Banco de Seguros del Estado, an entity
wholly owned by Uruguay. Pine Top claimed that Banco
1 After the oral argument, circumstances arose that led Circuit Judge
Ripple to recuse himself. He did not thereafter participate in the consid-
eration or decision of these appeals, which are being resolved by a quor-
um of the panel. See 28 U.S.C. §46(d).
2 Nos. 13-1364 & 13-2331
owes $2,352,464.08 under reinsurance contracts. Pine Top’s
complaint sought to compel arbitration but alternately pro-
posed that the court enter judgment for breach of contract.
Banco answered the complaint, and Pine Top moved to
strike the answer for failure to post security under Illinois
insurance law. The district court denied the motion, and Pine
Top took an immediate appeal in reliance on the collateral
order doctrine, which applies to orders about the posting of
security. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
541 (1949); Habitat Education Center v. United States Forest Ser-
vice, 607 F.3d 453, 455 (7th Cir. 2010).
The district court later denied Pine Top’s motion to com-
pel arbitration, and Pine Top took a second interlocutory ap-
peal on the authority of 9 U.S.C. §16. We discuss later some
jurisdictional questions related to that appeal. For now it is
enough to say that we affirm both of the district court’s deci-
sions.
I. BACKGROUND
A.
According to the allegations of the complaint, from 1977
to 1984 Banco entered into contracts under which it rein-
sured Pine Top Insurance Company (“Pine Top Insurance”).
The complaint in this suit alleges that Banco still owes more
than $2 million to the primary insurer.
Pine Top Insurance became insolvent and, in 1986, was
placed into liquidation under the supervision of an Illinois
court. After completing an accounting, its Liquidator sent a
demand letter to Banco on July 31, 2008, seeking the claimed
overdue balances on various reinsurance contracts. The Liq-
uidator then sold Pine Top Insurance’s accounts receivable to
Nos. 13-1364 & 13-2331 3
Pine Top, which was established for the purpose of acquiring
those rights. As the debt’s new owner, Pine Top sought to
collect. Banco disputed the amounts claimed, and Pine Top
filed the present action.
B.
In moving to strike Banco’s answer, Pine Top contended
that, under the Unauthorized Insurers Process Act as adopt-
ed in Illinois, 215 ILCS 5/123, Banco must post pre-answer
security in the full amount of the disputed debt. Banco op-
posed the motion, contending among other things that the
Foreign Sovereign Immunities Act (“FSIA”) bars any re-
quirement of prejudgment security. Pine Top acknowledges
that Banco’s status as an entity wholly owned by Uruguay
brings it within the FSIA.
The district court denied the motion to strike. It conclud-
ed that the FSIA’s prohibition on attaching a foreign state’s
property prevents application of the Illinois security re-
quirement. The court concluded that the security would be
an “attachment” within the meaning of the FSIA. It relied
principally on Stephens v. National Distillers & Chemical Corp.,
69 F.3d 1226 (2d Cir. 1995), which held that a similar security
requirement under New York law is equivalent to an at-
tachment. The district court also held that Banco had not
waived its FSIA immunity.
The district court later determined that Pine Top has no
right to arbitrate under the terms of the reinsurance treaties,
because the assignment executed by the Liquidator gave
Pine Top only limited rights to the collections of certain
debts, not all rights and duties under the treaties.
4 Nos. 13-1364 & 13-2331
II. DISCUSSION
Two orders of the district court are before us. The first
order, in appeal No. 13-1364, denied Pine Top’s motion to
strike Banco’s responsive pleading for failure to comply with
the security requirement of 215 ILCS 5/123(5). The second,
the subject of appeal No. 13-2331, denied Pine Top’s motion
to compel arbitration and dismissed those counts of the
complaint that demanded arbitration. We address these mat-
ters in turn.
A. Motion to Strike, Appeal No. 13-1364
Under 215 ILCS 5/123(5), before an insurer that is not
specifically authorized to do business in Illinois may file any
responsive pleading in a suit against it, it must first deposit
with the clerk of the court security sufficient to satisfy any
final judgment in the action. Although this is phrased as a
pleading rule, the parties treat it as substantive and we do
likewise without deciding whether the parties’ assumption is
correct. (If it is procedural, federal rules would control, see
Walker v. Armco Steel Corp., 446 U.S. 740 (1980), and federal
law does not require out-of-state insurers to post security.)
Banco does not contend that it is “authorized” for the
purpose of §5/123(5), but it does contend, and the district
court held, that the FSIA blocks enforcement of Illinois’s re-
quirement. Pine Top raises several arguments in reply: (1)
that the prejudgment security is not an attachment within
the meaning of the FSIA; (2) that, if the security would oth-
erwise be an attachment and be prohibited by the FSIA, Ban-
co waived its immunity; and (3) that the McCarran-Ferguson
Act, 15 U.S.C. §§ 1011–15, prevents application of the FSIA.
We address these contentions in turn.
Nos. 13-1364 & 13-2331 5
1. “Attachments” Prohibited by the FSIA
One section of the FSIA provides:
Subject to existing international agreements to which the United
States is a party at the time of enactment of this Act the property
in the United States of a foreign state shall be immune from attach-
ment arrest and execution except as provided in sections 1610 and
1611 of this chapter.
28 U.S.C. §1609 (emphasis added). The parties dispute
whether the security requirement in the Illinois Code is an
“attachment” within the meaning of §1609. In Pine Top’s
view, the term refers to a historical procedure to obtain ju-
risdiction over a foreign sovereign; Banco contends that it is
not so restricted and covers all security requirements de-
signed to ensure that a judgment can be enforced.
No case from this circuit addresses whether prejudgment
security is an “attachment” for FSIA purposes. 2 We therefore
must begin with the text of the statute. Argentina v. NML
Capital, Ltd., 134 S. Ct. 2250, 2256 (2014) (“[A]ny sort of im-
munity defense made by a foreign sovereign must stand on
the Act’s text. Or it must fall.”); see also Senne v. Village of Pal-
atine, 695 F.3d 597, 601 (7th Cir. 2012) (en banc). The FSIA
does not define the term “attachment arrest and execution”,
nor does §1609 make any other reference that would clarify
whether it covers only jurisdictional attachments or attach-
2 We noted in International Insurance Co. v. Caja Nacional Ahorro y Se-
guro, 293 F.3d 392, 397 n.12, 399 n.13 (7th Cir. 2002), that the attachment
provision “has been interpreted to include pre-judgment security,” citing
Stephens. We “express[ed] no opinion on whether attachment arrest and
pre-judgment security are identical for purposes of the FSIA,” however,
because the issue was not raised by the parties, and because, in any
event, we concluded that the defendant had waived any immunity.
6 Nos. 13-1364 & 13-2331
ments to secure judgments. However, the following section
provides important guidance about the term’s likely
breadth. 3 Section 1610 defines exceptions to the general rule
of immunity set forth in §1609; it explains when property,
which otherwise would be immunized under §1609, is not
immune from attachment under the Act:
(d) The property of a foreign state, as defined in section 1603(a)
of this chapter, used for a commercial activity in the United
States, shall not be immune from attachment prior to the entry of
judgment in any action brought in a court of the United States or
of a State, or prior to the elapse of the period of time provided in
subsection (c) of this section, if—
(1) the foreign state has explicitly waived its immunity from
attachment prior to judgment, notwithstanding any with-
drawal of the waiver the foreign state may purport to effect
except in accordance with the terms of the waiver, and
(2) the purpose of the attachment is to secure satisfaction of a
judgment that has been or may ultimately be entered against
the foreign state, and not to obtain jurisdiction.
28 U.S.C. §1610 (emphasis added). Section 1610(d) shows
that several conditions must be met before prejudgment at-
tachment of a foreign sovereign’s property is allowable: (1)
the property must be used for a commercial purpose; (2)
there must be an explicit waiver; and (3) the purpose of the
attachment must be to secure satisfaction of a judgment ra-
ther than to obtain jurisdiction. If we accepted Pine Top’s
reading—that §1609 deals exclusively with jurisdictional at-
3 See Dolan v. United States Postal Service, 546 U.S. 481, 486 (2006)
(“Interpretation of a word or phrase depends upon reading the whole
statutory text, considering the purpose and context of the statute[ ] … .”);
United States v. Webber, 536 F.3d 584, 593 (7th Cir. 2008) (noting that con-
text and structure can illuminate statutory meaning and collecting cases).
Nos. 13-1364 & 13-2331 7
tachments—§1610(d) would accomplish nothing; it would
allow waiver of immunity only for a class of property to
which no immunity attached by virtue of the prior section.
That is, unless §1609 includes attachments “the purpose of
[which] is to secure satisfaction of a judgment,” §1610(d) is
superfluous.
Pine Top points us to various references in the legislative
history that it believes support the opposite view, but none
directly concerns the text of §1609. Furthermore, in light of
the meaning manifest in the structure and context of the
statute, resort to these indirect references in the history is
neither necessary nor useful.
Our conclusion is supported by the only other circuit to
consider a similar issue. In S&S Machinery Co. v. Masinexpor-
timport, 706 F.2d 411, 418 (2d Cir. 1983), the district court had
issued two orders affecting the domestic property of a for-
eign defendant: a direct order of attachment and an injunc-
tion against negotiation of letters of credit. When the de-
fendant objected that the orders violated the FSIA, the dis-
trict court dissolved both orders, and the Second Circuit af-
firmed. It concluded that dissolution of the injunction in ad-
dition to the attachment was necessary because the “FSIA
would become meaningless if courts could eviscerate its pro-
tections merely by denominating their restraints as injunc-
tions against the negotiation or use of property rather than
as attachments of that property.” Id. at 418. S&S Machinery
held that prejudgment “attachment,” properly understood,
included “any other means to effect the same result.” Ibid.In Stephens the Second Circuit considered whether a pre-
judgment attachment requirement set by a New York insur-
ance statute was barred by the FSIA. As in the case before us,
8 Nos. 13-1364 & 13-2331
the trustee for an insolvent domestic insurance company
sought reimbursement from foreign reinsurers. The applica-
ble New York statute requiring pre-answer security was ma-
terially identical to the Illinois statute at issue in the present
case.
With S&S Machinery as a backdrop, the court in Stephens
had no difficulty in concluding that the security requirement
was barred by the FSIA:
The pre-judgment security requirement before us would force
foreign sovereign [reinsurers] to place some of their assets in the
hands of the United States courts for an indefinite period. Dur-
ing that time, the [reinsurers] would have no access to those as-
sets. All this is precisely the same result that would obtain if the
foreign sovereign’s assets were formally attached. There is, there-
fore, no significant distinction between New York’s security re-
quirement and an attachment of the property.
69 F.3d at 1229.
We agree with the Second Circuit that the statutory term
“attachment” has a broader meaning than that urged by Pine
Top. In addition to our independent statutory analysis, we
acknowledge, as the Second Circuit did, that not unlike
many federal statutes incorporating different state proce-
dures, a single unified term or group of terms stands as a
placeholder for a generic understanding rather than a refer-
ence to a particular state-law procedural vehicle or historical
practice. For that reason, Stephens’s holding that the matter of
whether a procedural requirement is barred by FSIA immun-
ity should turn on that requirement’s effect—rather than its
procedural particulars—is one that makes sense of the statu-
tory language. Accordingly, we conclude that the prejudg-
ment security requirement of 215 ILCS 5/123(5) is an “at-
tachment” under the FSIA.
Nos. 13-1364 & 13-2331 9
2. Waiver of Immunity
Pine Top next argues that any immunity available to Ban-
co under the FSIA has been waived under §1610(d). Pine Top
predicates its assertion of a waiver on (1) Banco’s agreement
to a reserves clause in the reinsurance contracts and (2) its
decision to transact reinsurance business in the state of Illi-
nois, which imposes the security requirement.
First, we examine the language of the reinsurance con-
tracts. The clauses cited by Pine Top required Banco, during
the term of its agreement, to “deposit with” Pine Top Insur-
ance “the amount of reserves in respect of [Banco’s] share of
… unearned premiums [and] outstanding losses and loss
expenses,” and to do so quarterly and within a month of a
request. These clauses set up a structure designed to ensure
that the secondary insurer maintains sufficient cash reserves
to meet its ongoing obligations. Such an arrangement is dis-
tinctly different, conceptually and practically, from a waiver
of protection from a judicial order of prejudgment security.
The reserves arrangement ensures the smooth operation of
the contract during its term; the statutory security provision
requires a party to surrender its assets to a court potentially
long after the contract ends. The contracts’ language sup-
ports this distinction. It provides that the reserves are calcu-
lated routinely during the term of the contract; this does not
even hint at consent to post security long after the contract’s
end to satisfy a potential judgment. Pine Top has not re-
quested the placement of reserves pursuant to the contract,
but rather a judicial order of security. The reserves clauses,
therefore, do not waive the protection afforded by the FSIA.
That Banco transacted business with an entity located
within Illinois likewise does not amount to consent to the
10 Nos. 13-1364 & 13-2331
state’s scheme. Banco may have been unaware of the security
requirement, or it may well have agreed to transact business
believing that the FSIA would protect it.
Moreover, any “waiver” that we could discern either
from the transacting of business with an entity in Illinois or
from reserves clauses that do not speak to orders of pre-
answer security in judicial proceedings would not be “ex-
plicit,” and therefore would not come within the statute’s ex-
emption. See 28 U.S.C. §1610(d)(1); S&S Machinery, 706 F.2d
at 416 (“[A] waiver of immunity from prejudgment attach-
ment must be explicit in the common sense meaning of the
term: the asserted waiver must demonstrate unambiguously
the foreign state’s intention to waive its immunity from pre-
judgment attachment in this country.”).
Finally, Pine Top’s reliance on Banco de Seguros del Estado
v. Mutual Marine Office, Inc., 344 F.3d 255 (2d Cir. 2003), is
unavailing. Mutual Marine reviewed an order by an arbitra-
tor that Banco post security during arbitration proceedings.
Banco challenged the order under the FSIA. The Second Cir-
cuit found an explicit waiver of immunity from attachment
in contract language authorizing the arbitrator to abstain
from following strict rules of law and to proceed without ju-
dicial formalities. Further, the contract at issue in Mutual Ma-
rine required Banco to obtain a letter of credit from a finan-
cial institution in order to secure its obligations. The court
read these two provisions as demonstrating a “clear and un-
ambiguous intent to waive all claims of immunity in all legal
proceedings.” Id. at 261. Mutual Marine is also not analogous
to our situation because the Second Circuit was employing a
different standard of review: it could not overturn the arbi-
Nos. 13-1364 & 13-2331 11
trator’s security requirement if there was any justification for
the arbitrator’s decision. See id. at 260.
Accordingly, we conclude that there has been no explicit
waiver by Banco of the protections afforded by the FSIA.
3. FSIA and McCarran-Ferguson
Having determined that the prejudgment security under
215 ILCS 5/123(5) would be an attachment within the mean-
ing of the FSIA, we turn to Pine Top’s contention that the
McCarran-Ferguson Act prevents application of the FSIA.
The McCarran-Ferguson Act provides, in relevant part,
No Act of Congress shall be construed to invalidate, impair, or
supersede any law enacted by any State for the purpose of regu-
lating the business of insurance, or which imposes a fee or tax
upon such business, unless such Act specifically relates to the
business of insurance … .
15 U.S.C. §1012(b). Pine Top supposes that, if the FSIA is in-
applicable (because it does not “specifically relate” to insur-
ance), then the state security requirement must be enforced.
That’s not so clear. Maybe knocking out the FSIA for the in-
surance industry would return us to the older regime of
common-law sovereign immunity discussed in NML Capital.
Maybe other considerations would block the enforcement of
the state statute. See Grupo Mexicano de Desarrollo, S.A. v. Al-
liance Bond Fund, Inc., 527 U.S. 308 (1999). But we need not
decide, because Pine Top has forfeited any argument resting
on the McCarran-Ferguson Act.
In the district court, Pine Top filed its complaint demand-
ing arbitration, or, in the alternative, relief in the amount of
the claimed debt. Banco answered; Pine Top moved to strike
Banco’s pleading because it had not posted pre-answer secu-
rity; Banco responded to the motion by claiming that the se-
12 Nos. 13-1364 & 13-2331
curity requirement is barred by the FSIA. Pine Top’s reply
conceded the general applicability of the FSIA, raising only
its contentions, explored above, that the FSIA’s provisions
prohibit only prejudgment “attachment” of the property of a
foreign sovereign or its instrumentality. Specifically, Pine
Top argued that the court needed to decide “two primary
questions: first, whether the relief sought is, in fact, an ‘at-
tachment’ of a sovereign’s property, and second, whether the
exception of section 1610(d) [concerning waiver of immuni-
ty] applies.” In the context of an argument that “[t]he pur-
poses” of the Illinois statute “distinguish it from ordinary
pre-judgment attachment rules,” Pine Top referenced the Il-
linois statute as a “proper exercise of the state’s authority to
regulate access to the business of insurance, authority which
has been enshrined in federal law since at least 1945.” This
sentence is followed by a citation to the “purposes” section
of the McCarran-Ferguson Act, 15 U.S.C. §1011, without
mention of §1012(b).
The district court agreed with Banco regarding the ap-
plicability of the FSIA. Pine Top then moved under Fed. R.
Civ. P. 59(e) to amend or correct the district court’s order. Its
motion contended that Stephens “incorporates a serious mis-
understanding of the purpose and structure of the FSIA”
and that the court should have rejected its reasoning. On re-
ply in support of this motion, Pine Top still did not invoke
§1012(b). Instead, it contended that Banco and the district
court had erred in discussing a portion of Stephens that ex-
amined the McCarran-Ferguson Act for the light it shed on
the meaning of attachment. The gravamen of Pine Top’s ar-
gument was that Stephens had misinterpreted the FSIA, and
its discussion of McCarran-Ferguson was a side note.
Nos. 13-1364 & 13-2331 13
We therefore conclude that Pine Top forfeited this issue
in the district court. The meaning of the FSIA was the issue
raised and debated by the parties throughout the district
court proceedings, and we see no direct argument that the
McCarran-Ferguson Act makes the FSIA inapplicable to the
insurance business.
When Banco contended in this court that Pine Top’s
McCarran-Ferguson argument had not been preserved in the
district court, Pine Top responded by acknowledging that
“there is no actual citation to McCarran Ferguson in [Pine
Top’s] briefs … to the district court.” It asserted, however,
that its briefs were “replete with references to the regulatory
policy of the state of Illinois and the threat to that policy if
the FSIA were interpreted to interfere with it.” It also
claimed that its scattered references to state authority to reg-
ulate insurance and to the year 1945 (the year of McCarran-
Ferguson’s enactment) make no sense outside of reliance on
§1012(b). In Pine Top’s view, in the district court, its “funda-
mental argument was that, because of McCarran Ferguson,
the term ‘attachment’ should be interpreted in a way that did
not conflict with governing state insurance law.”
We are not persuaded by this argument. The district
court was not required to intuit the significance of the year
1945 and to interpret isolated references to that year as refer-
ring to state authority to regulate insurance. Nor was it re-
quired to understand a generic mention of the McCarran-
Ferguson Act as an implicit request to hold a federal statute
inapplicable by virtue of §1012(b). See United States v. Holm,
326 F.3d 872, 877 (7th Cir. 2003) (noting that “[i]t is not the
obligation of [a] court to research and construct the legal ar-
guments open to parties, especially when they are represent-
14 Nos. 13-1364 & 13-2331
ed by counsel,” and that “perfunctory and undeveloped ar-
guments, and arguments that are unsupported by pertinent
authority, are waived” (internal quotation marks omitted)).
Furthermore, Pine Top’s only substantial references to
McCarran-Ferguson in the district court occur in a reply
brief in support of a 59(e) motion—not in the original motion
to strike or even the opening brief in support of 59(e)—and
such arguments are routinely deemed forfeited. See Sig-
sworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007) (“[I]t
is well-settled that a Rule 59(e) motion is not properly uti-
lized to advance arguments or theories that could and
should have been made before the district court rendered a
judgment … .” (internal quotation marks omitted)).
Because Pine Top has not preserved its argument that the
FSIA does not apply to the insurance business, we do not
address whether that argument would succeed on the mer-
its.
B. Arbitration Under the Panama Convention
1. Appellate Jurisdiction
The district court’s order declining to refer the dispute to
arbitration is appealable only if it falls within a specific ex-
ception to the final judgment rule. See Wingerter v. Chester
Quarry Co., 185 F.3d 657, 661 (7th Cir. 1998). The only candi-
date for such an exception is 9 U.S.C. §16(a), which authoriz-
es immediate appeal from various orders relating to arbitra-
tion:
Nos. 13-1364 & 13-2331 15
An appeal may be taken from—
(1) an order—
(A) refusing a stay of any action under section 3 of this
title,
(B) denying a petition under section 4 of this title to or-
der arbitration to proceed,
(C) denying an application under section 206 of this ti-
tle to compel arbitration,
(D) confirming or denying confirmation of an award or
partial award, or
(E) modifying, correcting, or vacating an award;
(2) an interlocutory order granting, continuing, or modifying
an injunction against an arbitration that is subject to this ti-
tle; or
(3) a final decision with respect to an arbitration that is sub-
ject to this title.
In their initial briefs to this court, both parties recited that
Pine Top had sought to compel arbitration under §4 of the
Federal Arbitration Act, 9 U.S.C. §4. They further submitted
that we had jurisdiction over this appeal under 9 U.S.C.
§16(a)(1)(B) or (C). Sections 4 and 16 appear in the Federal
Arbitration Act (“FAA”) proper—which is to say, chapter 1
of title 9 of the United States Code. However, this is a suit
involving a domestic corporation and an entity wholly
owned by Uruguay. Both the United States and Uruguay are
signatories of the Inter-American Convention on Interna-
tional Commercial Arbitration (the “Panama Convention”),
and it is this Convention, implemented by chapter 3 of the
Federal Arbitration Act, that controls. See Johnson Controls,
Inc. v. Edman Controls, Inc., 712 F.3d 1021, 1024–25 (7th Cir.
2013) (noting the spheres of applicability of chapters 1, 2,
and 3 of the FAA). Because the parties’ reliance on chapter 1
16 Nos. 13-1364 & 13-2331
of the FAA gave us pause, we requested supplemental brief-
ing.
Both parties then shifted their focus to chapter 3. Arguing
in support of appellate jurisdiction, Pine Top submits that, in
a proceeding under chapter 3, we still ought to follow chap-
ter 1 provisions (including 9 U.S.C. §16) to the extent that
they are not inconsistent with chapter 3. Pine Top maintains
that this suit is effectively a proceeding under §4, which al-
lows §16(a)(1)(B) to supply appellate jurisdiction. Banco
counters that without a statutory authorization specific to
chapter 3 we must dismiss the interlocutory appeal.
We begin with a detailed look at the statute, and specifi-
cally at the interplay among the three chapters of the FAA.
Chapter 1, the original FAA, enacted in 1925, applies directly
to domestic arbitrations and those not otherwise covered by
a legal instrument, Johnson Controls, 712 F.3d at 1024, but its
provisions apply by incorporation to other arbitrations as
well. Chapter 1 provides, in §4, that a party aggrieved by
another’s failure to arbitrate a dispute under a written
agreement
may petition any United States district court which, save for
such agreement, would have jurisdiction under Title 28, in a civil
action or in admiralty of the subject matter of a suit arising out of
the controversy between the parties, for an order directing that
such arbitration proceed in the manner provided for in such
agreement. … The hearing and proceedings, under such agree-
ment, shall be within the district in which the petition for an or-
der directing such arbitration is filed.
9 U.S.C. §4. Section 4 also specifies procedures for a district
court considering such a petition.
Nos. 13-1364 & 13-2331 17
Each other chapter of the FAA implements an interna-
tional convention to which the United States is a party.
Chapter 2 implements the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, known as the
New York Convention, for which there are nearly 150 con-
tracting states. Commercial arbitration agreements between
citizens of contracting states fall under the Convention, as do
agreements between citizens of the United States, when they
involve property, performance or enforcement abroad or
“some other reasonable relation with one or more foreign
states.” 9 U.S.C. §202. Chapter 3 implements the Panama
Convention, which has 19 state parties. The Panama Conven-
tion incorporates the same rules of scope as the New York
Convention, see §302 (incorporating §202), except that it also
provides that when the requirements for both Conventions
are satisfied, if the majority of parties to the agreement are
citizens of Panama Convention state parties, that Conven-
tion, rather than the New York Convention, controls. 9
U.S.C. §305. Thus, the present case is governed by the Pana-
ma Convention.
The three chapters track each other in significant re-
spects—not only because they contain many parallel provi-
sions but also because chapters 2 and 3 contain incorpora-
tion provisions. Chapters 2 and 3 contain separate authoriza-
tion for a party to petition a district court having jurisdiction
over the controversy to order the parties to arbitrate. Those
provisions—sections 206 and 303—speak in more general
terms than §4, and they include little procedural detail. Both
chapter 2 and chapter 3 also include a provision calling for
the application of chapter 1 “to actions and proceedings
brought under this chapter to the extent” that they do not
conflict. 9 U.S.C. §§ 208, 307. A party seeking to compel arbi-
18 Nos. 13-1364 & 13-2331
tration generally proceeds formally under §4, §206, or §303,
depending on which chapter applies; however, because of
the residual application of chapter 1 procedures found prin-
cipally in §4, the proceedings do not necessarily look mark-
edly different.
There are, however, two significant differences between
the New York and Panama Conventions that are potentially
significant in our jurisdictional analysis. The first is that, in
1988, after the New York Convention had been implemented
but before the implementing legislation for the Panama
Convention, Congress amended chapter 1 to add §16. Sec-
tion 16 is the only section of the FAA defining appropriate
appellate jurisdiction in federal court proceedings related to
the FAA, and it replaced a system previously used by courts
of appeals but ultimately rejected by the Supreme Court. See
generally Gulfstream Aerospace Corp. v. Mayacamas Corp., 485
U.S. 271, 279–88 (1988). New §16 added language permitting
interlocutory appeals for motions or applications seeking to
compel arbitration under the only two chapters then existing
in the FAA—chapters 1 and 2. Specifically, it provides that a
party whose petition under §4 to compel arbitration is de-
nied may seek immediate appeal of that order.
When Congress added chapter 3 to implement the Pan-
ama Convention two years later, it did not amend §16. Ac-
cordingly, there is no direct reference in §16 to any chapter 3
proceedings. The problem posed by a lack of specific refer-
ence to the Panama Convention proceedings in §16 is one
that has escaped the attention of our sister circuits. It has al-
so, in large measure, escaped mention by commentators, alt-
hough the little commentary that exists supports the view
that §16 applies. See John P. Bowman, The Panama Convention
Nos. 13-1364 & 13-2331 19
and Its Implementation Under the Federal Arbitration Act, 11
Am. Rev. Int’l Arb. 1, 95 (2000). 4
If this case were governed by chapter 1 or 2, to which §16
refers, we clearly would have jurisdiction. Because it is not,
we must consider whether the incorporation provisions in
chapter 3 make §16 applicable. There are two: 9 U.S.C. §302,
which incorporates much of the New York Convention, and
9 U.S.C. §307, which provides for residual application of
chapter 1 in its entirety “to actions and proceedings brought
under this chapter to the extent chapter 1 is not in conflict”
with chapter 3 or the Panama Convention itself.
The first of these alternatives, §302, is not helpful in our
present inquiry. The only portion of §16 that authorizes in-
terlocutory appeals under the New York Convention is
§16(a)(1)(C), which allows appeals from applications to
compel under 9 U.S.C. §206. But the Panama Convention in-
corporates only specific provisions of the New York Conven-
tion, and §206 is not among them.
We therefore turn to the remaining possibility: that the
provision relating to the residual application of chapter 1,
found in §307, provides this court with authority. After care-
4 “When adopting Chapter 3 of the federal act in 1990, Congress did
not amend Section 16 to make specific reference to Section 303(a), the
new chapter’s counterpart to Sections 4 and 206. Section 16’s silence with
regard to Section 303(a) should not, however, be interpreted as relegat-
ing orders issued under Chapter 3 to a different appellate regime or, spe-
cifically, as allowing appeal of interlocutory orders compelling arbitra-
tion under Section 303(a). By providing for application of Chapter 1 to
actions and proceedings brought under Chapter 3, Section 307 makes
Section 16 applicable to interlocutory orders compelling arbitration un-
der Section 303(a) and the Panama Convention.”
20 Nos. 13-1364 & 13-2331
ful study, we believe that this residual clause confers appel-
late jurisdiction over an order denying arbitration. Because
chapter 3 provides essentially no guidance to the district
court with respect to the conduct of enforcement proceed-
ings, a district court must turn to §4 for vital procedures, and
§307 permits this borrowing. The application of §16 follows,
because §16(a)(1)(B) is linked to §4.
Banco suggests that, while such a result might be plausi-
ble where a case could have been brought directly under §4
and satisfies all of §4’s requirements, it is implausible where
a conflict exists between §303 and a part of §4. Specifically,
Banco invites the court’s attention to the terms of several of
the reinsurance contracts, which provide that arbitration is
to take place in Phoenix. It notes that §4 permits a district
court to order that arbitration proceed only within the judi-
cial district in which the petition is filed. Because a district
court considering this case under §4 could not order relief
consistent with the agreement, Banco argues that we must
disregard §4, and with it §16(a)(1)(B).
We do not believe that the statute should be construed
this way. The portion of §4 limiting the place of arbitration
conflicts with §303, which allows the court to order arbitra-
tion in whatever place the agreement provides. But the other
procedural specifications in §4 are consistent with §303, so
§307 incorporates them. Just as importantly, nothing outside
of §4 tells a district court what procedures to employ in con-
sidering a §303 motion. Section 4 provides the procedures a
federal court uses to determine the arbitrability of any dis-
pute under any chapter of the FAA, with only a few excep-
tions.
Nos. 13-1364 & 13-2331 21
Moreover, we previously have considered circumstances
in which only part of §4 could apply to a case before us, and
we had no difficulty in making that application and excising
the inconsistent provision. In Jain v. de Méré, 51 F.3d 686 (7th
Cir. 1995), we held that when a sole provision in §4 conflict-
ed with those under the New York Convention, courts could
still use those non-conflicting portions of §4. Jain involved an
agreement to arbitrate that did not specify a location, and
the petitioner sought, by way of the incorporation provision
in §208, to apply the rule of §4 that a district court may order
arbitration “within the district” in which the court sits. De
Méré, the respondent, attempted to block the court from ap-
plying §4. He argued that §4 could not apply because its
own limitations were not satisfied. We rejected his argument.
The upshot was a recognition that the incorporation provi-
sion in chapter 2 allowed us—indeed, required us—to excise
those individual portions of §4 that cause conflict while still
applying those portions that did not.
We see no material distinction in a case under the Pana-
ma Convention. The authority conveyed by §303 to order
arbitration at any location consistent with the agreement
overrides only a single portion of §4. The rest of §4 is con-
sistent with the Panama Convention and applies to chapter 3
through the residual clause of §307. The text of §16(a)(1)(B)
does the remaining work. 5
5 Although the context is not relevant in the present case, we note
that the Supreme Court has rejected at least one overly restrictive read-
ing of §16. See Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 627–29 (2009).
22 Nos. 13-1364 & 13-2331
2. Merits
Pine Top seeks to enforce the arbitration clauses in the re-
insurance policies between Pine Top Insurance and Banco.
The district court held that the Purchase Agreement (by
which Pine Top acquired its rights from the Liquidator) did
not transfer a right to demand arbitration.
Pine Top’s contentions fit into four categories: (1) that the
applicable language of the Purchase Agreement indeed
transfers the right to demand arbitration; (2) that, to the ex-
tent the Purchase Agreement is silent, the Uniform Commer-
cial Code fills the gap and transfers the right; (3) that parol
evidence suggests that the Liquidator and Pine Top meant to
transfer the right, and that such evidence was accorded in-
sufficient weight by the district court; and (4) that, because
Banco raises defenses to liability based on the policies’ terms,
it is equitably estopped from resisting application of all por-
tions of the policies. We address these contentions in turn.
a. Language of the Agreement
Pine Top’s first argument is that the Purchase Agreement
transfers the right to demand arbitration. It relies on the fol-
lowing provisions:
The agreement defines the purchased “Debts” as:
The net balances due … or which may become due … from the
… Debtors to the Assignor pursuant to the terms of the Policies;
… including all rights securing payment of such balances, such
as funds in the hands of brokers, letters of credit or collateral
pledged with respect to such Debts.
Further, under Clause 2.1
In consideration of [payment] by the Assignee to the Assignor,
… the Assignor shall … assign to the Assignee all of its rights, ti-
Nos. 13-1364 & 13-2331 23
tle, benefit and interest in the Debts absolutely and with full title
….
Finally, and most importantly in Pine Top’s view, under
Clause 5.2,
As of the Effective Date of this Agreement and by virtue of this
Assignment Agreement, Assignor authorizes Assignee to de-
mand, sue for, compromise and recover all amounts as now are,
or may hereafter become, due and payable for or on account of
the Debts. Assignor grants to Assignee full authority to do all
things necessary or useful to enforce the Debts and Assignor’s
rights thereunder pursuant to this Assignment Agreement. It is
specifically understood and agreed, however, that Assignee’s
rights under this paragraph are discretionary and Assignee may
exercise or decline to exercise such powers at Assignee’s sole op-
tion. Nothing in this Agreement shall create any obligation on
the part of Assignee to any person other than the Assignor.
Pine Top relies principally on the language in Clause 5.2 that
it acquired “full authority to do all things necessary or useful
to enforce the Debts and Assignor’s rights thereunder pur-
suant to this Assignment Agreement.” As the district court
noted, this provision could be read to encompass the arbitra-
tion clauses. However, when Clause 5.2 is read in conjunc-
tion with the preceding section, that interpretation becomes
implausible. Under Clause 5.1, Pine Top acquired the right to
obtain information “relating to the Debts or any Policies
from which such Debts might have arisen, to the same extent
and under the same conditions as the Assignor could have
done so in an exercise of its contractual rights.” This shows
that the drafters of the Purchase Agreement knew how to
communicate a full and complete transfer of rights, but, with
respect to the debts, authorized a more limited transfer.
The district court’s analysis of the terms is sound. The
contract specifically vests full title in the debts and authoriz-
24 Nos. 13-1364 & 13-2331
es Pine Top to “demand, sue for, compromise and recover all
amounts” of those debts. The “necessary or useful” language
follows this specific assignment of rights and authorizes ac-
tions related to the four specifically conferred rights (de-
mand, sue, compromise, recover), but does not incorporate
new or additional rights that are themselves “creature[s] of
contract,” Dunmire v. Schneider, 481 F.3d 465, 467 (7th Cir.
2007). Not only is “demand arbitration” not specifically in-
cluded in the transferred rights, it is of an entirely different
character. Ownership of a debt may imply the right to recov-
er the debt absent some legal impediment, but it does not
imply the right to use a means not otherwise established as a
right under the law. The policies themselves are not trans-
ferred under the Purchase Agreement. Clause 2.4.1 says ex-
actly that: “The assignment … shall not … be construed to be
a novation or assignment of the Policies.”
Finally, as the district court noted, the policies’ right to
demand arbitration is reciprocal, and the Purchase Agree-
ment states that Pine Top does not accept any responsibility
to anyone other than the Liquidator. (“Nothing in this
Agreement shall create any obligation on the part of Assign-
ee to any person other than the Assignor.”) The Liquidator
did not give Pine Top an obligation to submit to arbitration at
Banco’s request. It is not clear how the Liquidator could
transfer a one-way right to demand arbitration without im-
posing any reciprocal obligation on Pine Top. (Banco has not
argued that an assignment of the debt, without Pine Top’s
consent to arbitration at Banco’s behest, is invalid.)
b. UCC as Gap-Filler
Pine Top next contends that UCC terms fill any necessary
gaps and establish that a transfer of rights in the debt in-
Nos. 13-1364 & 13-2331 25
cludes a right to arbitration. The application of the UCC
provision is a matter of controversy between the parties, but
one that we need not resolve. Even if the UCC does apply,
Pine Top’s arguments are unpersuasive. The provisions of
the UCC on which Pine Top relies cover contractual lan-
guage assigning “the contract” or “all my rights under the
contract.” 810 ILCS 5/2–210(5). If an assignment includes
such language, the UCC tells us that the transfer is subject to
“all terms of the agreement.” 810 ILCS 5/9–404(a). If the as-
signment at issue in this case had employed such language
in transferring rights in the debt to Pine Top, resort to the
UCC would be unnecessary; the agreement itself would
have transferred the right to demand arbitration. But that’s
not what the assignment says.
c. Parol Evidence of Intent
Pine Top further submits that the only sensible reading of
the Purchase Agreement is that it acquired the arbitration
authority because the Liquidator was charged with obtain-
ing as much for the assets as possible and had authority to
sell any asset, including the right to demand arbitration. In
support of its argument, Pine Top cites affidavits submitted
in the district court from the Liquidator’s staff verifying that
the Liquidator tried to maximize the price by selling all
available assets.
The district court saw no reason to consider the affida-
vits, given that it had concluded that the contract was un-
ambiguous. Neither the affidavits nor anything else Pine Top
proposed to offer concerns discussions during negotiations
or the meaning of any concrete language in the documents.
The district court found, and we concur, that it is unhelpful
26 Nos. 13-1364 & 13-2331
because it moved the issue no further than the allegations of
the complaint themselves.
Pine Top is right to say that Illinois does not forbid all pa-
rol evidence when offered to resolve a dispute that involves
persons other than the contracting parties. See Quality Light-
ing Inc. v. Benjamin, 227 Ill. App. 3d 880, 886–87 (1992). How-
ever, this permissive approach does not alter the ordinary
rule that parol evidence is useless unless it illuminates the
meaning of a contract’s language. This evidence doesn’t.
d. Estoppel
Pine Top’s final argument is that Banco is estopped from
denying that Pine Top received a right to arbitrate. Accord-
ing to Pine Top, Banco itself presented defenses that depend
on the language of the reinsurance treaties; this means that
Banco must concede that all of this contractual language
governs the parties’ relations. Pine Top relies on Hughes Ma-
sonry Co. v. Greater Clark County School Building Corp., 659
F.2d 836, 838–39 (7th Cir. 1981). This argument merits little
attention. Hughes involved a set of contracts for school con-
struction through which a county designated J.A. as architect
and project manager and Hughes as mason; each entity exe-
cuted contracts separately with Clark, but Hughes’s contract
specified duties that J.A. would perform as project manager
of the entire construction project. Hughes later sued J.A. for
claims in tort, but the court stated that, in truth, they were
claims sounding in contract, for the failure of J.A. to perform
as designated under the agreements. When J.A. attempted to
arbitrate as provided in the Hughes-Clark contract, Hughes
defended by claiming that J.A. had no right to enforce the
arbitration clause. We were not persuaded; we determined
that Hughes had commenced an action for breach of terms
Nos. 13-1364 & 13-2331 27
of a contract by J.A., and that it would be inequitable to re-
fuse J.A. the procedural remedies provided in that same
document.
The situation before us is entirely different. Pine Top had
absolutely no relationship to the underlying contracts other
than an after-acquired right to collect certain debts. The va-
lidity and amount of those debts cannot be determined other
than by looking to the terms of the agreement; this com-
pelled Banco to refer to the contract. Unlike Hughes, there is
no set of reciprocal obligations to enforce. The reinsurance
contracts are simply the backdrop by which the amount of
debt is established. They do not otherwise govern the cur-
rent parties’ rights.
Conclusion
The district court did not err in allowing Banco to file re-
sponsive pleadings, because the Illinois statute requiring
pre-answer security cannot be applied to Banco consistent
with the FSIA. Banco did not waive its immunity in the
manner allowed by that statute, and Pine Top forfeited its
current contentions that the McCarran-Ferguson Act allows
a state rule to govern. On the arbitration question, we first
hold that denials of motions to compel arbitration under the
Panama Convention are immediately appealable under 9
U.S.C. §16(a)(1)(B). On the merits, the contract language, rea-
sonably read, does not transfer the right to demand arbitra-
tion. The orders of the district court are affirmed.