FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL D. CASTRO, an individual,

Plaintiff-Appellant,

v.

TRI MARINE FISH COMPANY LLC, an 

unknown entity; TRI MARINE 

MANAGEMENT COMPANY LLC, an 

unknown entity; CAPE MENDOCINO 

FISHING LP, an unknown entity; 

CAPE MENDOCINO FISHING LLC, an 

unknown entity; DOES, 1 through 20, 

inclusive,

Defendants-Appellees.

No. 17-35703

D.C. No.

2:17-cv-00008-

RSL

ORDER AND 

AMENDED

OPINION

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, Senior District Judge, Presiding

Argued and Submitted November 8, 2018

Seattle, Washington

Filed February 27, 2019

Amended April 15, 2019
2 CASTRO V. TRI MARINE FISH CO.

Before: M. Margaret McKeown and Michelle T. Friedland, 

Circuit Judges, and Susan R. Bolton,* District Judge.

Opinion by Judge McKeown

SUMMARY**

Arbitration

The panel reversed in part and vacated in part the district 

court’s order treating an order issued by an arbitrator in the 

Philippines as a foreign arbitral award and confirming the 

arbitrator’s order under the New York Convention and the 

Convention Act.

Looking to the essence of the arbitrator’s order, the panel 

held that the order was not a foreign arbitral award because 

the parties had already agreed to settle their dispute, and so 

there was no outstanding dispute to arbitrate when they 

brought the matter to the arbitrator. In addition, the 

purported arbitration did not follow the parties’ prior 

agreements to arbitrate, nor did it follow Philippine arbitral 

procedure.

The panel remanded for the district court to 

assess jurisdiction under the Convention Act and—as 

 * The Honorable Susan R. Bolton, United States District Judge for 

the District of Arizona, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CASTRO V. TRI MARINE FISH CO. 3

appropriate—venue and any defenses to enforcement of the 

settlement.

COUNSEL

William L. Banning (argued), Banning LLP, Rancho Santa 

Fe, California; John W. Merriam, Law Offices of John W. 

Merriam, Seattle, Washington; for Plaintiff-Appellant.

Colin J. Folawn (argued) and David Boyajian, Schwabe 

Williamson & Wyatt P.C., Seattle, Washington, for 

Defendants-Appellees.

Svetlana P. Spivak, Holmes Weddle & Barcott P.C., Seattle, 

Washington, for Amicus Curiae Joint Manning Group.

ORDER

The opinion filed on February 27, 2019, and appearing 

at 916 F.3d 1191, is amended. On page 13, <flouted> is 

replaced with <appears to have omitted required aspects of>, 

and <deviated completely> is replaced with <appears to 

have deviated>. An amended opinion is filed concurrently 

with this order.

With these amendments, the panel has voted to deny the 

petition for panel rehearing.

The full court has been advised of the petition for 

rehearing and rehearing en banc and no judge has requested 

a vote on whether to rehear the matter en banc. Fed. R. App. 

P. 35.
4 CASTRO V. TRI MARINE FISH CO.

The petition for panel rehearing and rehearing en banc 

(Dkt. 36) is denied. The motion to proceed as amicus (Dkt. 

37) is granted. No further petitions for en banc or panel 

rehearing shall be permitted.

OPINION

McKEOWN, Circuit Judge:

Central to the United Nations Convention on the 

Recognition and Enforcement of Foreign Arbitral Awards, 

June 10, 1958, 21 U.S.T. 2517 (“New York Convention”), 

and related federal law is the principle insulating foreign 

arbitral awards from second-guessing by courts. But this 

appeal involves an even more fundamental question—

whether we are presented with a foreign arbitral award at all. 

In the mine run of cases, the answer is uncontroversial: 

when it looks, swims, and quacks like an arbitral award, it 

typically is. Yet, in this unusual appeal, we have an arbitral 

award in name only. There was no dispute to arbitrate, as 

the parties had fully settled their claims before approaching 

an arbitrator; the purported arbitration consisted of an 

impromptu meeting in a building lobby; and the 

“proceedings” disregarded the terms of three arbitration 

agreements between the parties and the issuing forum’s 

arbitral rules. We conclude that the resulting order is not an 

arbitral award entitled to enforcement under the Convention.

BACKGROUND

In late 2012, Michael Castro moved from the 

Philippines, where he retains citizenship, to American 

Samoa to live with April Castillo, his fiancé, and her family. 

Several months later, Castro was working in a Tri Marine 
CASTRO V. TRI MARINE FISH CO. 5

warehouse when Tri Marine offered him a crew position 

aboard the F/V Captain Vincent Gann (the “Vessel”), a 

fishing vessel with an imminent departure date.1 He 

accepted a position as a deck hand.

The day before departing, Castro visited Tri Marine’s 

offices to sign employment paperwork. Castro and Tri 

Marine dispute what was signed that day. Tri Marine 

contends that Castro signed his employment agreement, 

which is consistent with the date typed on the agreement 

itself. Castro insists that before departing he signed only “a 

half sheet of paper with a few sentences on it including [a] 

pay rate of $3.00 per ton [of fish caught], the name of the 

Vessel[,] and a signature line,” and that he did not sign the 

employment agreement until he appeared before an 

arbitrator in February 2014. The employment agreement—

whenever Castro signed it—contained a mandatory 

arbitration provision applicable to all disputes or claims 

arising out of Castro’s employment aboard the Vessel. It 

required arbitration to occur in and subject to the procedural 

rules of American Samoa.

On July 30, 2013, approximately two weeks into the 

fishing trip, Castro fell down a set of stairs and severely 

injured his knee. Castro requested that Tri Marine return 

him to American Samoa so he could travel to Hawaii for 

medical care, but Tri Marine instead arranged for Castro’s 

transport to and medical care in the Philippines. In midAugust, Castro underwent surgery for a torn anterior cruciate 

ligament and a torn meniscus, followed by treatment and 

 1 Castro sued several entities with alleged interests in the Vessel. 

For purposes of this appeal, there is no relevant distinction between the 

entities. We refer to them collectively as Tri Marine.
6 CASTRO V. TRI MARINE FISH CO.

physical therapy. Tri Marine paid Castro’s medical 

expenses and monthly maintenance.

Several months into Castro’s rehabilitation, doctors 

diagnosed his father with kidney cancer and predicted he 

would die without surgery. Castro and his family could not 

afford his father’s surgery, so Castro approached Rhodylyn 

De Torres, a Tri Marine agent in the Philippines, and 

negotiated a settlement of his disability claims. In exchange 

for an advance of $5,000, Castro reiterated his assent to the 

employment agreement’s arbitration and choice of law 

clauses. Shortly after, Castro agreed in principle to release 

fully his claims in exchange for an additional $16,160.2

After Tri Marine prepared the settlement paperwork, 

Castro met De Torres at her office in Manila to finalize the 

settlement. Castro speaks only rudimentary English—his 

native tongue is Tagalog—so Castillo, who has a greater 

proficiency in English, attended the meeting and helped him 

review the settlement materials. De Torres informed Castro 

in advance that he would be signing release documents to 

conclude his case, but not that he would be participating in 

an arbitration.

De Torres and Castro provide divergent accounts of the 

meeting. De Torres attests that over the course of two hours, 

she explained the documents to Castro in “Filipino 

language” (presumably, Tagalog), Castro indicated that he 

understood, and Castro signed the release documents. She 

also indicates that she explained, and Castro agreed, that an 

 2 We use variants of the terms “agree” and “settle” for convenience’s 

sake. We do not suggest any conclusion regarding Castro’s defenses to 

formation and enforcement of the purported settlement. Those defenses 

remain open issues on remand.
CASTRO V. TRI MARINE FISH CO. 7

arbitrator would review and approve the release documents 

“to make the settlement legal and binding.” Castro disputes 

whether De Torres translated documents into Tagalog, 

explained that he would be foregoing future legal claims by 

signing them, or informed him that he would be participating 

in arbitration. According to Castro, De Torres told him they 

would go to a different office merely to pick up the 

settlement check and execute paperwork acknowledging 

receipt.

Although it is disputed when in the day this happened, 

Castro executed a release of Tri Marine “from any and all 

liability or claims . . . arising out of or in any way connected 

with an illness, incident, and/or incidents aboard the [Vessel] 

on or about 30 July, 2013.” Castro acknowledged and 

released his right to future maintenance and cure in exchange 

for the settlement amount. Like Castro’s employment 

agreement (and as he reiterated when accepting his advance 

payment), the release provided that disputes over its validity 

and enforceability would be arbitrated in American Samoa.

After the parties had agreed to the terms of the release, a 

Tri Marine agent ushered Castro and Castillo to an office 

building that housed the National Conciliation and 

Mediation Board. De Torres had led Castro to believe that 

they would merely pick up the settlement disbursement and 

acknowledge receipt. Tri Marine now contends that they 

went to the Board’s office to submit their dispute to 

arbitration. Gregorio Biares, an accredited maritime 

voluntary arbitrator, met the parties in the lobby and 

introduced himself as a neutral arbitrator.

The meeting was Castro’s first and only interaction with 

an arbitrator. Seated at a small table in the public lobby, 

surrounded by strangers entering and leaving the building, 

Biares reviewed the settlement paperwork with Castro. 
8 CASTRO V. TRI MARINE FISH CO.

Biares attests that he explained the implications of the 

release and confirmed in Tagalog that Castro understood the 

documents. Castro paints a different picture: Biares 

“hurriedly flipped through the pages showing [Castro] where 

to sign,” emphasized that the settlement was favorable to 

Castro, and misled Castro by characterizing the settlement 

as “just a first payment” and informing Castro that he is 

ineligible for protection under the Jones Act.

Although there was no arbitral case filed, Tri Marine 

provided Biares a “joint motion to dismiss” pursuant to the 

parties’ settlement, accompanied by the release paperwork 

that Castro had already signed. The two-page joint motion 

to dismiss was the first “filing” in the “case,” which lacks a 

case number. Biares signed a one-page document, labeled 

an “order,” which recognized the settlement, stated that 

Biares found the settlement “not contrary to law, morals, 

good customs and public policy,” and dismissed the “case” 

with prejudice. The order acknowledges that it is the product 

of a “Walk In Settlement” and that the release had already 

been “duly signed by both parties” before meeting with 

Biares.

Later treatment revealed that Castro’s initial surgery had 

failed to graft his anterior cruciate ligament or address his 

torn meniscus. Facing additional surgery to repair these 

mistakes, Castro sued Tri Marine in Washington state court 

to recover the additional expenses. Invoking the New York 

Convention, Tri Marine removed the case to federal court 

and moved to confirm the order as a foreign arbitral award. 

The district court denied Castro’s motion to remand, 

confirmed the order, and dismissed the case.
CASTRO V. TRI MARINE FISH CO. 9

ANALYSIS

I. The New York Convention

The New York Convention, to which the United States 

is a party, governs “the recognition and enforcement of 

arbitral awards made in the territory of” a foreign state. 

New York Convention, art. I(1) (emphasis added). Through 

the Convention and implementing legislation, the United 

States sought “to encourage the recognition and enforcement 

of commercial arbitration agreements in international 

contracts and to unify the standards by which agreements to 

arbitrate are observed and arbitral awards are enforced in the 

signatory countries.” Scherk v. Alberto-Culver Co., 417 U.S. 

506, 520 n.15 (1974).

The United States codified its Convention obligations in 

the Convention Act, 9 U.S.C. §§ 201–08. Rogers v. Royal 

Caribbean Cruise Line, 547 F.3d 1148, 1152–53 (9th Cir. 

2008). Just as the Federal Arbitration Act (“FAA”) affords 

considerable deference to domestic arbitral awards, the 

Convention Act does the same for foreign arbitral awards. 

Polimaster Ltd. v. RAE Sys., Inc., 623 F.3d 832, 836 (9th Cir. 

2010). A court must confirm a foreign arbitral award unless 

the party resisting enforcement meets its “substantial” 

burden of proving one of seven narrowly interpreted 

defenses. Id.; see 9 U.S.C. § 207 (incorporating the 

Convention’s defenses); New York Convention, art. V 

(listing defenses). The judicial role in this process is 

circumscribed: “Confirmation under the Convention is a 

summary proceeding in nature, which is not intended to 

involve complex factual determinations, other than a 

determination of the limited statutory conditions for 

confirmation or grounds for refusal to confirm.” Zeiler v. 

Deitsch, 500 F.3d 157, 169 (2d Cir. 2007).
10 CASTRO V. TRI MARINE FISH CO.

Yet, before we employ the Convention’s and the 

Convention Act’s substantial protections, the threshold step 

is, of course, to ensure they apply. This interpretive inquiry 

requires our de novo review. CVS Health Corp. v. Vividus, 

LLC, 878 F.3d 703, 706 (9th Cir. 2017) (statutes); Hosaka v. 

United Airlines, Inc., 305 F.3d 989, 993 (9th Cir. 2002) 

(treaties). The key question here is whether there is an 

“arbitral award” to consider. Amazingly, that term is not 

defined in the Convention Act, which governs only “arbitral 

award[s] falling under the Convention.” 9 U.S.C. § 207. 

Congress defined “falling under the Convention,” id. § 202, 

but not “arbitral award” or “arbitration.” “Arbitration” and 

“arbitral award” are also undefined in the Convention itself 

and in the FAA, 9 U.S.C. §§ 1–16. See Polimaster, 623 F.3d 

at 836 (“When interpreting the defenses to confirmation of 

an arbitration award under the New York Convention, we 

may look to authority under the FAA.”).

We therefore interpret the term by applying its common 

meaning and common sense. Green Tree Fin. Corp.–Ala. v. 

Randolph, 531 U.S. 79, 86 (2000). We also look to the 

American Law Institute’s recent restatement on international 

commercial arbitration, which offers helpful guidance and 

background. See Restatement (Third) U.S. Law of Int’l 

Commercial Arbitration § 1-1 (Am. Law Inst., Tentative 

Draft No. 2, 2012) (“Restatement TD No. 2”).3 It sets forth 

several helpful definitions:

 3 Although the membership has not formally approved the full 

Restatement (Third) of the U.S. Law of International Commercial 

Arbitration, the American Law Institute has approved Tentative Draft 

No. 2, which contains the only sections that we consider here. See 

Discussion of Restatement of the Law Third, The U.S. Law of 

International Commercial Arbitration, 2012 A.L.I. Proceedings 143 

(Am. Law Inst., May 22, 2012).
CASTRO V. TRI MARINE FISH CO. 11

An “arbitral award” is a decision in writing 

by an arbitral tribunal that sets forth the final 

and binding determination on the merits of a 

claim, defense, or issue, regardless of 

whether that decision resolves the entire 

controversy before the tribunal. . . .

An “arbitral tribunal” is a body consisting of 

one or more persons designated directly or 

indirectly by the parties to an arbitration 

agreement and empowered by them to 

adjudicate a dispute that has arisen between 

or among them.

“Arbitration” is a dispute resolution method 

in which the disputing parties empower an 

arbitral tribunal to decide a dispute in a final 

and binding manner.

Id. § 1-1(a)–(c).

II. The Purported Arbitral Award

In a superficial sense, the order issued here resembles an 

arbitral award: it was issued by an arbitrator and purports to 

award Castro a monetary remedy and dismiss the “case” 

with prejudice. But labels and appearances are not 

controlling—we evaluate an award by looking to its essence. 

Id. § 1-1 cmt. a. Several unique aspects of these proceedings 

lead us to conclude that the order is not an arbitral award 

within the meaning of the Convention.

To begin, there was no outstanding dispute to arbitrate 

by the time Castro and Tri Marine sat down with the 

arbitrator. Id. § 1-1(c) (“‘Arbitration’ is a dispute resolution 
12 CASTRO V. TRI MARINE FISH CO.

method . . . .”). Integral to the Convention’s conception of 

arbitration is the endeavor to resolve a dispute:

[T]he tribunal must be dealing with a genuine 

disagreement to have jurisdiction. Where 

parties appoint an arbitral tribunal after a 

settlement to merely record the settlement in 

the . . . award, there is no “difference” 

between the parties to resolve; the parties 

have already settled the dispute. A 

“difference” is a necessary precondition of an 

“award” in the sense of the New York 

Convention.

Yaraslau Kryvoi & Dmitry Davydenko, Consent Awards in 

International Arbitration: From Settlement to Enforcement, 

40 Brook. J. Int’l L. 827, 854 (2015); see also Arbitration,

Black’s Law Dictionary (10th ed. 2014) (“A disputeresolution process in which . . . neutral third parties . . . 

resolv[e] the dispute.”); A Decree Instituting a Labor Code 

Thereby Revising and Consolidating Labor and Social Laws 

to Afford Protection to Labor, Promote Employment and 

Human Resources Development and Insure Industrial Peace 

Based on Social Justice, Pres. Dec. No. 442 (as amended), 

art. 262 (1974) (Philippine Labor Code permitting 

arbitrators to “hear and decide . . . labor disputes”); Revised 

Procedural Guidelines in the Conduct of Voluntary 

Arbitration Proceedings, National Conciliation and 

Mediation Board, Rule II § 1(d) (2005) (“Procedural 

Guidelines”) (Philippine rules of voluntary arbitration 

defining “Voluntary Arbitration” as a “mode of settling 

labor-management disputes”).

Castro and Tri Marine agreed to settle their dispute, and 

to terms for doing so, before they ever visited an arbitrator. 
CASTRO V. TRI MARINE FISH CO. 13

In exchange for a monetary settlement, Castro released Tri 

Marine “from any and all liability or claims . . . arising out 

of or in any way connected with” the July 30, 2013 incident. 

Having settled their dispute, Castro and Tri Marine had 

nothing to arbitrate. See Restatement TD No. 2 § 1-1(c); 

Kryvoi & Davydenko, 40 Brook. J. Int’l L. at 854.

What’s more, the purported arbitration in no way 

followed the parties’ prior agreements to arbitrate. Because

“[a]rbitration is consent-based,” Restatement TD No. 2 § 1-

1 Reporters’ Note d, the tribunal “derives its jurisdiction and 

remedial powers” from the parties’ assent, id. § 1-1 cmt. b. 

The employment agreement provided for arbitration in and 

subject to the procedural rules of American Samoa, the 

advance payment receipt reiterated the employment 

agreement’s arbitration and choice of law clauses, and even 

the executed release provided for arbitration in American 

Samoa. The lobby meeting with Biares was a far cry—in 

venue and law—from the agreed procedure.

To be sure, parties can waive contractual terms, but 

Castro’s conduct hardly demonstrates an intent to arbitrate 

his dispute in the Philippines. Castro had no dispute. He 

simply sought to pick up the settlement check and 

acknowledge receipt—which Tri Marine led him to believe 

he was doing. The setting and surroundings of the lobby sitdown suggested a coffee date more than an arbitral 

proceeding; little wonder, then, that Castro professed 

ignorance that the meeting supposedly constituted 

arbitration. These circumstances scarcely demonstrate that 

Castro sought to waive or amend his thrice-written 

agreement to arbitrate disputes in American Samoa. Nor do 

any of the final documents reference waiver of the parties’ 

repeated commitments to arbitrate in American Samoa.
14 CASTRO V. TRI MARINE FISH CO.

Beyond fidelity to the terms of the arbitration agreement, 

an “arbitrator[] . . . act[s] pursuant to the arbitration law of 

the arbitral seat . . . and any procedural rules that the parties 

may have adopted.” Restatement TD No. 2 § 1-1 cmt. c. 

The parties did not “adopt” any procedural rules apart from 

those set forth in the three written agreements. The meeting 

also appears to have omitted required aspects of Philippine 

arbitral procedure. In the Philippines, voluntary arbitration 

begins upon receipt of a submission agreement signed by 

both parties. Procedural Guidelines, Rule IV § 4. No 

submission agreement was filed here. The submission 

agreement must list the specific issues to be arbitrated. Id.,

Rule IV § 5. But no arbitrable issues existed here, as the 

parties had already resolved their dispute. Other Philippine 

pre-arbitration procedures, such as an initial conference, 

joint formulation of ground rules, and pleadings, were 

conspicuously absent as well. Id., Rule VI §§ 2, 3, 6, 8. In 

sum, the procedure here appears to have deviated from 

typical Philippine procedures. This divergence confirms our 

understanding that arbitration did not occur.

We conclude that the parties’ free-floating settlement 

agreement and order did not transform into an arbitral award 

simply because the parties convened with an arbitrator. Tri 

Marine may seek to enforce the release as a matter of 

contract, but the order approving the settlement is not an 

arbitral award under the Convention.

Importantly, our decision does not encroach on the 

common practice of reducing settlements reached during

arbitration into arbitral awards, frequently termed “consent 

awards.” Many international arbitral rules empower 

arbitrators—upon the parties’ request—to enter consent 

awards. See Margaret L. Moses, The Principles and 

Practice of International Commercial Arbitration 205 (3d 
CASTRO V. TRI MARINE FISH CO. 15

ed. 2017). Consent awards encourage settlement by 

conferring substantial benefits—including the Convention’s 

protections—upon parties that obtain them. See Nigel 

Blackaby et al., Redfern and Hunter on International 

Arbitration §§ 9.33, 9.34, 9.36 (Student ed. 2009) (noting 

that several international arbitral bodies embrace consent 

awards).

Our decision does not disturb this practice for a simple 

reason: it did not occur here. “Timing is important for a 

settlement agreement to become an award. Usually a 

consent award becomes possible after a tribunal has been 

constituted. . . . Otherwise the tribunal will have no right to 

render a consent award.” Kryvoi & Davydenko, 40 Brook. 

J. Int’l L. at 842–43.4 Philippine, American, and broadly 

applicable international rules impose this temporal 

limitation on consent awards. Philippine arbitrators may 

issue a consent award “[i]n the event that the parties finally 

settle their dispute during the pendency of the arbitration 

proceedings.” Procedural Guidelines, Rule VII § 4 

(emphasis added). Leading American and international 

arbitration groups espouse the same limitation. See Am. 

Arbitration Ass’n, Commercial Arbitration Rules and 

Mediation Procedures R-48(a) (2013); United Nations 

Commission on International Trade Law, Model Law on 

International Commercial Arbitration, art. 30(1) (2006). 

Even the two cases involving consent awards cited favorably 

by Tri Marine are consistent with this timing requirement. 

See United States v. Sperry Corp., 493 U.S. 52, 56–57 (1989) 

(parties initiated arbitration, then settled, and then obtained 

a consent award); Transocean Offshore Gulf of Guinea VII 

 4 The authors characterize their article as “the first major study of 

the legal regime governing consent awards in international arbitration.” 

Kryvoi & Davydenko, 40 Brook. J. Int’l L. at 828.
16 CASTRO V. TRI MARINE FISH CO.

Ltd. v. Erin Energy Corp., No. CV H-17-2623, 2018 WL 

1251924, at *1 (S.D. Tex. Mar. 12, 2018) (same). The 

timing here was backwards—Castro and Tri Marine settled 

and then sought to arbitrate. The result is not a consent 

award.

Finally, we emphasize that our decision does not elevate 

form over function. Tri Marine protests, for instance, that to 

obtain a proper consent award, it could have simply initiated 

arbitral proceedings before finalizing the settlement. 

Perhaps, but not for nothing. An essential aspect of 

arbitration is each party’s inability to unilaterally withdraw 

from proceedings. Restatement TD No. 2 § 1-1 cmt. c. 

Other, “[c]ollaborative forms of [alternative dispute 

resolution],” by contrast, “require the parties’ continuing 

willingness to participate.” Id. § 1-1 Reporters’ Note c. 

Accordingly, “the weight of decisional authority and 

international consensus” does not treat collaborative 

processes, such as mediation, as “arbitration” under the 

Convention. Id. Had the arbitrator here balked—for 

instance, by ordering a hearing on voluntariness or enforcing 

the venue provision pointing to American Samoa—Tri 

Marine could have taken its settlement and gone home. 

Although perhaps a modest hurdle, the modicum of 

formality required for a proceeding to constitute arbitration 

is no empty ritual.

III. Remand

Because the district court treated the order as a foreign 

arbitral award, it proceeded in summary fashion under the 

Convention. For example, it weighed evidence and resolved 

genuine disputes of material fact in favor of Tri Marine, 

thereby rejecting out of hand Castro’s coercion defense. In 

light of our conclusion, the district court’s approach was in 

error. We vacate in full the order confirming the arbitral 
CASTRO V. TRI MARINE FISH CO. 17

award, including the ruling on the validity of the seaman’s 

release.

At oral argument, Castro suggested for the first time that 

the absence of an arbitral award calls into question federal 

jurisdiction. The Convention Act permits removal of cases 

that “relate[] to an arbitration agreement or award falling 

under the Convention.” 9 U.S.C. § 205. Although the order 

here is not an arbitral award, the subject matter of the case 

may nonetheless “relate[] to an arbitration agreement.” Id.; 

see Infuturia Glob. Ltd. v. Sequus Pharm., Inc., 631 F.3d 

1133, 1138 (9th Cir. 2011) (“The phrase ‘relates to’ is 

plainly broad . . . .”).

In light of the parties’ failure to brief this issue on appeal, 

we take no position on the ultimate disposition of this 

jurisdictional question. We remand for the district court to 

assess jurisdiction and—as appropriate—venue and any 

defenses to enforcement.

CONCLUSION

We review foreign arbitral awards deferentially, but we 

do not blind ourselves to reality when presented with an 

order purporting to be one. To cloak its free-floating 

settlement agreement in the New York Convention’s 

favorable enforcement regime, Tri Marine asked an 

arbitrator to wave his wand and transform the settlement into 

an arbitral award. That is not sufficient to produce an award 

subject to the Convention.

REVERSED IN PART, VACATED IN PART, AND 

REMANDED.

Tri Marine shall bear costs on appeal.