United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
Shipping, Guinea brought this suit to enforce shipping rights
as an alleged third-party beneficiary of certain contractual
rights held by the Republic of Guinea. Defendants Alcoa,
Inc., Alcoa World Alumina LLC, and Harvey Aluminum Company of
Delaware move to dismiss; they argue that all claims are
subject to mandatory arbitration and that Nanko Shipping has
failed to state a claim on which relief may be granted. The
Court finds that Nanko Shipping is not subject to the
arbitration provision in the contract between the Republic of
Guinea and Harvey Aluminum Company and, therefore, its
contract claims are properly brought in court. As a result,
Nanko Shipping may complain of racial discrimination under 42
U.S.C. §§ 1981 and 1985. However, Nanko
Shipping's claims for tortious interference with contract
and civil conspiracy will be dismissed for failure to state a
1963, the Republic of Guinea (Guinea) and Harvey Aluminum
Company of Delaware (Halco) executed the Compagnie des
Bauxites de Guinée Convention to develop bauxite
mining and processing in Guinea. Third Am. Compl. (TAC) [Dkt.
35] ¶ 1; see also Ex. A, Halco Mot. to Dismiss,
Agreement Between The Republic of Guinea and Harvey Aluminum
Co. (CBG Convention) [Dkt. 47-2]. The Compagnie des Bauxites
de Guinee (the Bauxite Company of Guinea) (CBG or
Corporation) is a corporation owned 49% by Guinea and 51% by
Halco. TAC ¶ 1. Article 9 of the CBG Convention gave
Guinea a qualified right to ship 50% of the bauxite produced:
The Government [of Guinea] reserves the right, inasmuch as it
does not adversely affect the sale of bauxite, to have the
exported tonnage load[illegible] a proportion [of] which
shall not exceed fifty percent on ships operating under
[illegible] Guinean flag or an assimilated flag, or on ships
chartered by the Government on the international shipping
market, the above being, however, under the express condition
that the freight tariffs practiced are lower or equal to
those which are quoted at that particular time on the
international shipping market for identical conditions for
the freight and the shipping routes considered.
CBG Convention, Art. 9 at 33-34; see also TAC ¶¶ 1,
Over the past 50 years, the Corporation has produced and
exported over 600 million tons of bauxite from Guinea; the
bauxite has been used to produce approximately 150 million
tons of aluminum valued at over $400 billion. TAC ¶ 14.
August 17, 2011, Guinea entered into a Technical Assistance
Agreement (TAA) with Nanko Shipping, Guinea (Nanko Shipping).
Id. ¶ 25; see also Ex. 1, TAC, Technical
Assistance Agreement [Dkt. 35-1]. Under the terms of the
Technical Assistance Agreement, Guinea authorized Nanko
Shipping to exercise Guinea's shipping rights under
Article 9 of the CBG Convention, thereby making Nanko
Shipping a third-party beneficiary to the CBG Convention. TAC
¶¶ 3, 4, 25, 77. In this lawsuit, Nanko Shipping
asserts a right to control bauxite shipments from Guinea for
the benefit of the Guinean government and people.
Id. ¶ 4.
Shipping, Nanko Shipping USA, and owner Mori Diane originally
brought this suit against Alcoa, Inc. and its affiliate,
Alcoa World Alumina, LLC (collectively Alcoa Defendants).
See Compl. [Dkt. 1]. This Court dismissed Nanko
Shipping USA and Mr. Diane for lack of standing and that
holding was not appealed. See Nanko Shipping,
USA v. Alcoa, Inc., 107 F.Supp.3d 174,
179-80 (D.D.C. 2015) (Nanko Shipping I); Nanko
Shipping, USA v. Alcoa, Inc., 850 F.3d 461, 462 (D.C.
Cir. 2017) (Nanko Shipping II). The Court also
dismissed all claims brought by Nanko Shipping for failure to
join a necessary party, the Republic of Guinea, and, in the
alternative, dismissed Nanko Shipping's § 1981,
tortious interference, and civil conspiracy claims for
failure to state a claim upon which relief may be granted.
See Nanko Shipping I, 107 F.Supp.3d at 182-83. On
appeal, the United States Court of Appeals for the District
of Columbia Circuit held that the Republic of Guinea is not
an indispensable party to this suit and that Nanko Shipping
had adequately alleged a § 1981 claim; it otherwise
sustained this Court's initial decision. See Nanko
Shipping II, 850 F.3d at 467.
remand, Nanko Shipping filed a Third Amended Complaint adding
Defendant Halco to the Alcoa Defendants and advancing four
Count I: Breach of Third-Party Beneficiary Contract (against
Count II: Race Discrimination in Violation of 42 U.S.C.
§§ 1981 and 1985 (against all Defendants);
Count III: Tortious Interference with Business/Contractual
Relations and/or Prospective Advantage (against all
Count IV: Civil Conspiracy (against all Defendants).
TAC ¶¶ 74-109. The Alcoa Defendants move to
dismiss, arguing that the CBG Convention requires all claims
to be submitted to arbitration and, in the alternative, the
tortious interference and civil conspiracy claims fail
because Nanko Shipping failed to allege affirmative and
intentional interference by Alcoa. Halco moves to dismiss as
well; it argues that (1) the CBG Convention requires
arbitration; (2) Nanko Shipping failed to allege any duty
under the CBG Convention that Halco may have breached, so its
breach of contract and §§ 1981 and 1985 claims must
fail; and (3) the Third Amended Complaint fails adequately to
plead claims of tortious interference and civil conspiracy.
After Nanko Shipping opposed the motions, both Defendants
replied. The motions are ripe for review.
Federal Arbitration Act
Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., was
passed by Congress “to establish an alternative to the
complications of litigation.” Revere Copper &
Brass Inc. v. Overseas Private Inv. Corp., 628 F.2d 81,
83 (D.C. Cir. 1980). The FAA provides that “[a] written
provision in . . . a contract evidencing a transaction
involving commerce to settle by arbitration a controversy
thereafter arising out of such contract . . . shall be valid,
irrevocable, and enforceable, save upon such grounds as exist
at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. When arbitration clauses
arise in the context of international agreements, a court
applies Chapter Two of the FAA, which codifies the Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards, opened for signature June 10, 1958, 21 U.S.T. 2517,
330 U.N.T.S. 3 (New York Convention); see also 9 U.S.C.
§§ 201-208. The FAA declares that “[a]n
action or proceeding falling under the [New York] Convention
shall be deemed to arise under the laws and treaties of the
United States. The district courts . . . shall have original
jurisdiction over such an action or proceeding, regardless of
the amount in controversy.” 9 U.S.C. § 203. The
New York Convention itself obligates contracting nations to
“recognize [foreign] arbitral awards as binding and
enforce them in accordance with” local procedural law.
New York Convention, Art. III. As a party to the New York
Convention, the United States has reserved the right to
recognize and enforce only those awards made “in the
territory of another Contracting State, ” i.e., a
signatory foreign nation. Id. Art. I(3) (allowing
is a matter of contract and a party cannot be required to
submit to arbitration any dispute which he has not agreed so
to submit.” Atkinson v. Sinclair Ref. Co., 370
U.S. 238, 241 (1962) (quoting United Steelworkers of Am.
v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582
(1960)). “[A]rbitration is simply a matter of contract
between the parties.” First Options of Chicago,
Inc. v. Kaplan,514 U.S. 938, 943 (1995). When a party
seeks arbitration that another party opposes, the question
arises whether a court or an arbitrator decides whether the
dispute is arbitrable. The answer depends on whether the
parties agreed to submit that opening question to an
arbitrator; if so, a court defers to the arbitrator but if
not, the court decides that question independently.
Id. at 943-44. “When deciding whether the
parties agreed to arbitrate a certain matter (including
arbitrability), courts generally . . . should apply ordinary
state-law principles that govern the formation of
contracts.” Id. at 944. In this ...