### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20100

TRICON ENERGY LIMITED, Plaintiff–Appellee Cross–Appellant,

versus VINMAR INTERNATIONAL, LIMITED, Defendant–Appellant Cross–Appellee.

Appeals from the United States District Court for the Southern District of Texas

Before STEWART, Chief Judge, SMITH and WIENER, Circuit Judges. JERRY E. SMITH, Circuit Judge:

An arbitration p anel awarded Tricon Energy Ltd. (“Tricon”) damages, and post-award interest on those dama ges at 8.5%, b ecause Vinmar International, Lt d

. ( “ Vinmar”), breached a contract. V inmar appeals a judgment confirming the award, claiming the parties never agreed t o arbitrate. Tricon cross-appeals, contending the district court improperly granted postjudgment interest a t the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May3, 2013 Ly l e W . Cay ce Clerk Case: 12-20100 Document: 00512230150 Page: 1 Date Filed: 05/03/2013No. 12-20100

statutory rate instead of the rate assigned by the arbitrators. We affirm.

I. Working through a broker, Vinmar agreed to buy 5000 metric t o n s of

m ixed xylene (“MX”

SS an industrial petrochemical) from T r icon. 1 The parties reached a binding agreement when the broker matched Vinmar’s firm bid with Tricon’s firm offer. The broker sent Rick Wilson, Vinm a r’s trader, and Brad Lockwood, Tricon’s trader, a two-page memorandum confirming the deal, then

a s econd memorandum reflecting a change requested by the parties, then a third memorandum fixing a typographical error. The next day, Lockwood emailed W ilson that “I’m pleased to attach a copy of our sales contract t o you for the [MX] deal from yesterday. P lease let Vuk [Rajevac] know the contact details for your logistics c o lleague, so he can be sure to a rrange everything properly on this. T hanks for t he business.” The a ttached four-page contract incorporated most of the terms in the b ro k e r ’s memoranda and i ncluded additional terms, including a clause calling for arbitr a t i o n of all disputes arisi n g u n d e r the purchase agreement. On the last page were signature blocks f

or L ockwood and Wilson; bel o w t h e b locks, the contract stated, “Please advise your a greement by signing the foregoing and returning via fax

. . . within 24 h o u r s . I n the event we do not receive your reply a s requested, then this c o ntract shall be t he governing instrument.” N either Lockwood nor Wilson filled in the signature blocks. Wilson forwarded the contract to Laurentiu Pascu, Vinmar’s supply-chain specialist, via an email stating, “ Laurentiu, I bough[t] MX from T r icon please

1 The f acts , w hich neither p arty d is p utes , are cond ens ed f rom the d is trict court’s m em orand a and ord ers . 2 Case: 12-20100 Document: 00512230150 Page: 2 Date Filed: 05/03/2013No. 12-20100

contact them a nd make necessary arrangements.” 2 After reviewing the contract and making h andwritten n o t e s o n the document with Vinmar’s suggested changes (none of which related to the arb i t ration clause), Pascu scanned the marked-up sales contract and emailed it to V u k Rajevac, h i s c o u n t e rpart at Tricon, per an email reading, Dear Vuk,
Please find enclose[d] our comments on your Sale Confirmation. We shall revert soon with our Purchase Order for your review. . . . Best regards, Laurentiu Pascu
Vinmar International Ltd.
Rajevac replied that day: Hi Laur[e]ntiu, To answer your questions: 1) Your comments on the contract well noted and accepted except for Demurrage time bar which is 90 days as per industry wide standard . . . If you have any questions, let me know. Thanks! Best Regards! Vuk Rajevac TRICON ENERGY, Ltd. Lockwood testified that in the aromatics trading industry, after a deal is reached through a broker, th e c o n t r a cting p a rties pass p aper to propose addi2 In the s ubs eque n t a r b i tration p roceed ing, Wils on tes tif ied that Pas cu’s role w as to “m ak e s ure . . . that the term s of the agreem ent are cons is tent w ith w hat w e’ve agreed to” and “to execute” “all the f

inancial and contractual agreem ents

. ”

3 Case: 12-20100 Document: 00512230150 Page: 3 Date Filed: 05/03/2013No. 12-20100

tional terms and that it is c ommon for the p arties not to agree to some o f the proposed additional terms but to proceed with the deal n onetheless. Rajevac testified that the parties’ correspondence replaces the broker’s confirmation of the deal and e x p a n d s o n i t with additional terms but does n ot change the deal already made. On July 31, 2008—after the price of MX had fallen dramatically—Wilson sent Lockwood an instant m essage offering to “wipe the slate clean,” which Lockwood rejected. W ilson t hen e mailed Rajevac that Vinmar c o uld “not accept open origin f or t his material, it must [ be] from t h e USA.” Neither the b roker’s confirmation nor the sales contract specified t h at t he MX had to have been manufactured in t he U.S.; Tricon asserts that this email was t h e fi r s t time Vinmar had demanded U .S.-origin MX. Rajevac informed Wilson that Tricon could not guarantee U.S. origin, because it could not satisfy both that demand and the contract’s delivery window. Vinmar r efused to declare a discharge p ort o n August 8, 2008, t he date specified in the broker’s c onfirmation a nd Tricon’s sales contract. Tricon sold some of the MX but was unable to find a buyer for the rest.

I I. A y ear later, Tricon initiated arbitration proceedings, alleging breach o f contract. A three-member arbitration panel c o n c l u d ed that the parties had entered into a b inding contr a c t w h e n they negotiated the transaction through their broker and that t he terms of the c ontract were those summarized i n the broker’s last revised memorandum. The panel found that Tricon had proposed

a d d i t i onal terms when it sent Vinmar i ts s ales contract and that most of t he additional terms—including the arbitration cl a use—became part of the agreement when Rajevac accepted Pascu’s comments on Tricon’s sales contract. Tricon w as awarded $1,338,776.72 in damages plus pre- and post-award interest at the contractual rate of 8.5%, costs, and attorney’s fees.

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Tricon petitioned to confirm the arbitration award under 9 U.S.C. § 207; Vinmar counterclaimed a nd moved to vacate t he award. The district court declined to v a c a t e a n d directed the parties t o submit a proposed order confirming the a ward and e ntering final judgment. Tricon’s proposed judgment gave postjudgment interest at 8.5%; Vinmar’s designated the default federal rate under 28 U.S.C. § 1961. After reviewing the arguments and relevant caselaw, the court awarded postjudgment interest at the federal rate. Vinmar appeals the order confirming the a ward, insisting that the parties

never agreed to arbitrate. Tricon appeals the award of postjudgment interest at the federal statutory rate, contending that the court impermissibly disregarded the arbitrator’s award of a higher rate.

III. We review an order confirming an arbitration award under the same standard as for any other district-court decision 3 : F actual f indings are r eviewed for clear error and conclusions of law de novo . Hughes T raining , 254 F.3d at 592. The district court c oncluded t hat Vinmar had failed to raise a genuine issue of material fact concerning the a greement to arbitrate. A dispute o f material fact is “genuine” i f the e vidence would p ermit a reasonable f act finder to rule in favor of either party. 4 We r eview d e novo the award of p ostjudgment interest under 28 U.S.C. § 1961. S ee Westinghouse Credit Corp. v. D’Urso , 371 F.3d 96, 100 (2d Cir. 2004).

3 See Hughes Tra i ni ng Inc. v . C ook , 2 5 4 F

. 3 d 588, 592 ( 5th Cir. 2001) ( citing Fi rst O pti ons of Chi

. , Inc. v. Ka p l an , 514 U

. S. 938, 947–49 ( 1995) )

.
4 See Phi l l i

p s O i l Co. v . O

KC Corp

. , 812 F .2d 265, 272–73 (5th Cir. 1987) ( citing A nderson v . Li berty Lobby, Inc. , 477 U

. S. 242, 250 (1986) )

. 5 Case: 12-20100 Document: 00512230150 Page: 5 Date Filed: 05/03/2013No. 12-20100 IV. The parties agree, at least f o r the pur p o s e o f this case, that they formed

a contract no later than J uly 22, 2008, when the broker matched Vinmar’s f irm bid w ith Tricon’s firm offer. T hey dispute whether they agreed to modify that contract by adding an arbitration agreement. “[A]rbitration is simply a matter of contract

. . .; it i s a way t o resolve those disputes—but o nly those disputes—that the par t ies have agreed t o submit to arbitration.” First Options , 514 U.S. at 943. Unless t he parties a greed to submit the question of arbitrability to arbitration, the court must decide the question independently, “apply[ing] ordinary state-law principles t hat govern the formation of contracts.” Id. at 943–44. 5 The parties agree t hat t he contract-formation principles o f the Texas Uniform Commercial Code apply, and under it, “[a] c o ntract for sale of goods may be

m a d e in any manner sufficient to show agreement, including conduct by b o t h parties which recognizes the exist ence of such a contract.” T E X
. B U S

. & C O M
. C O D E § 2.204(a). An offer “invit[es] acceptance in any manner and by a n y medium reasonable i n the circumstances” unless the language o r circumstances of t he offer “unambiguously” indicate otherwise. Id. § 2.206(a). Once a contract is formed, “[a]n agreement modifying [that] contract

. . . needs no consideration to be binding.” Id. § 2.209(a). The district court c oncluded, a s a matter of law, that “Vinmar assented to the a dditional terms—including the arbitration clause—proposed i n the Tricon sales contract t hat w as attached to the J uly 24, 2008 email.” R eviewing the record evidence , t h e c ourt held that Tricon’s sales c ontract offered additional terms. When Pascu marked up and returned the document, he accepted those

5 See a l so Wi l l

- D ri l l Res. , I n c . v . S a m s o n Res. Co. , 352 F. 3d 211, 218 ( 5th Cir. 2003) ( “Where the very exis tence of any agreem ent is dis p uted , it is f or the courts to decid e at the outs et w hether an agreem ent w as reached , ap p lying s tate- law p rincip les of contract. ”)

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terms to which he d id not object, including the arbitration provision, and he

c o unter-offered other terms. Thereafter, Rajevac agreed to Pascu’s modifie d terms except one, the d emurrage bar. As t he district court cogently explained, “Read as a whole , [ P a s c u’s] email and the accompanying marked-up sales contract—which struck out s ome language, inserted some language, and checkm a r ked some clauses [including arbitration] in the contract— c o n v e y e d Vi n m a r ’ s assent to the un-objected to additional terms in the sales contract.” Vinmar does not assert, at least primarily, t h at the d i s t r i c t court was wrong to conclude that the parties agreed to arbitration, b ut Vinmar urges that the court was wrong to c onclude so as a m atter of law. Vinmar’s main argument is that assent t o a contract depends on the intent of the par t i e s , w h i c h is normally a question of fact, not law. “The issue of whether the parties required t h at t he agreement be signed to be considered b inding is one of intent, and, therefore, the issue is n ormally a fact question for the jury to decide.” S caife v. Associated Air Ctr. Inc. , 100 F.3d 406, 410 (5th Cir. 1996). 6 Whatever the usual approach, there is n othing wrong, per se , with a court’s deciding intent a s a matter o f law. “Although whether the parties intended t o be bound i s often a q uestion o f fact, it may be d e termined as a matter of law.” W

TG Gas Processing, L.P. v. ConocoPhillips Co. , 309 S.W.3d 635, 643 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). 7 That is especially true where, as here, the negotiations were in w riting. 8 Even our panel in Scaife ,

6 Se e a l s o S i m m o n s & S i m m ons Constr. Co. v. Rea , 286 S. W. 2d 415, 417 ( T ex. 1955) ( “[ I] ntention is us ually an inf erence to be d raw n by the f act f ind er f rom other f

acts and circum

s tances in evid ence. ”)

.

7 See a l so Lone Sta r S t eel Co. v. Scott , 759 S

. W

. 2 d 144, 157 ( Tex. Ap p.

— Texark ana 1988, writ d enied ) ( “O nce a d eterm ination has been m ad e as to w hat p as sed betw een the p arties , d ecis ions as to w hether their agreem ent meets the legal requirem ents of a contract and its interp retation are ques tions of law

. ”)

.

8 G il bert v. Petti ette , 838 S. W. 2d 890, 893 ( T ex. Ap p . — H ous ton [1s t D is t. ] 1992, no w rit) ( continued

. . . ) 7 Case: 12-20100 Document: 00512230150 Page: 7 Date Filed: 05/03/2013No. 12-20100

100 F.3d at 4 11, held, as a matter of law, that the “parties intended to manifest their assent to t his agreement through a f ormal w ritten contract signed by both parties.” Scaife , 100 F.3d at 411. Vinmar next contends t hat the unsigned signature l ines o n the sales contract raise, a t the very least, a genuine dispute of fact if n o t grounds t o render

a de c i s i o n i n V inmar’s favor. In Texas, “ the p resence or a bsence of signatures

on a written contract i s relevant to d etermining whether the contract is binding

on t he p arties.

. . . [I]f the parties have unconditionally assented to t erms stated in an unsigned document, the document constitutes a binding w ritten contract, regardless of whether it is signed.” In re Bunzl U S A, Inc. , 1 55 S.W.3d 202, 209 (Tex. App.—El P aso 2004, no pet.). Although signatures are not required, “the parties may provide that the signature o f each party is a p r erequisite to a binding written contract.” Id. Whether a “ contract must be signed to b e binding is

a question of the parties’ intent.” Id. (citing, i nter alia , S caife , 100 F .3d at 410). Contrary t o Vinmar’s assertions, blank s ignature l i nes are not proof, by themselves, that the parties required formal s ignatures f or a contract to be binding. In Scaife , for example, the blank signature lines hardly stood alone: (1) [T]h e agreement h a d signature blocks for t he parties to sign; (2) the language in the agreement provided “IN WITNESS WHEREOF, the p arties have caused this agreement t o be executed by their duly authorized representative at Dallas, Texas, on the first d a t e w r itten above;” (3) one third of the contract price was du e “upon the signing of the contract;” (4) the airc r aft was to be delivered to the owner within 90 d ays subject to the execution of the contract; and ( 5) a c l ause in the contract stated t h at no party could alter o r amend the contract except i n writing signed by both parties. Scaife , 100 F.3d at 410. Furthermore, “Scaife took affirmative steps to ensure

8 (

. .. continued ) ( “Where ‘negotiations ’ are in w riting, the q u e s t i o n of w hether an of f er w as uncond itionally accep ted is p rim arily a m atter of law f or the court. ”)

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that a r epresentative would be able to sign the agreement once a finalized contract had been prepared and signed” by the other party. Id. a t 411. That is to say, Scaife’s c hief pilot “arranged to travel to [Scaife’s a ttorney’s] office

. . . to sign the agreement on behalf of Scaife Flight Operations.” I d. at 408. Simi l a r l y , i n S tanwood Boom Works, LLC v. BP Exploration & Production, Inc. , 476 F. App’x 572, 575 (5th Cir. 2012), we considered “the f ull context of the parties’ negotiations,” not just the blank s i g n a t ure lines. “Stanwood informed BP that Stanwood required BP’s signature prior to moving forward, and Stanwood added a signature block for BP. BP n ever signed it.” I d. at 573. During

n e g o t i a t i ons, “BP specifically i nformed Stanwood that it could not s eek author i t y to enter into the purchase order until after Stanwood signed.” Id. at 574. Here, t here i s no evidence that the parties intended to sign the sales contract before it became a binding addit i o n t o t h eir agreement. V inmar insists that t here were blank signature lines on the sales contract, b ut T ricon presented undisputed testimony that those lines were automatically generated by its computer. 9 Unlike the c ontract in Scaife , which refer r e d t o signatures a nd formal execution multiple times, Tricon’s sales contract contained no other references to the need for signatures. Vinmar has not presented any evidence that it discussed the need for signatures with Tricon, unlike the situation in Stanwood

. Furthermore, whereas Scaife’s chief pilot p l anned to travel to a d e signated place to sign that c ontract, Vinmar points t o no “affirmative steps” by Tricon to ensure
a r e p resentative could sign the agreement, except t hat Tricon owned a fa x

9 Vinm ar relies on Coa sta l C orp . v . A tl a nti c Ri chf

i el d Co. , 852 S. W. 2d 714 ( Tex. Ap p . — Corp us Chris ti 1993, no w rit) , f or the p rop os ition that Tricon cannot rely on the s ales contract f or its arbitration claus e while res is ting its s ignature block

. Coa sta l , though, involved the s ale of s ecurities , w hich und er Texas law “requires a w riting ind icating that a contract has been
m ad e and s igned by the p arty agains t w hom it is sought to be enf orced .” Id. at 717. Furtherm ore, the provis ion of that contract w as exp licit— “N othing in this Agreem ent s hall be bind ing up on any of the p arties until this Agreem en t i s e x ecuted by all of the parties by their d uly authorized of

f icers

. ” Id. H ere, by contras t, the text on the s ignature block ind icated that the s ales contract w ould becom e “the governing ins trum ent” if it w ere lef t uns igned

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machine. Vinmar’ s e v i d e n ce t hat it did not assent to the a rbitration provision is thin. Vinmar contends that a reasonable f act f inder could t ake Vinmar’s promise to “revert soon with our purchase order” as evidence that the purchase order, rather than the sales contract, would constitute the agreement. Vinmar offers

no e v i d e n c e o f r e g u l a r practice, industry custom, o r communications b etween the parties to support such an inference, which would be purely speculative. None of Vinmar’s remaining attacks on the district co u r t ’ s reasoning is persuasive. The court a c c e p t ed Tricon’s evidence that it w as common in the industry to agree to a dditional terms without signatures. First, Vinmar argues that some kinds of deals are signed and some are not. The d istinction between the t wo, Vinmar asserts, “is not entirely clear.” To t he c ontrary, the portions of the record cited explain the d i fference precisely—“Unless they’re a long-term contract with t h e company over a period of a year usually, then they’re usually

never signed,” testified Lockwood—and—“On spot deals, I d o n’t recall ever seeing [the signature blocks] signed,” recounted Rajevac. Second, cont r a r y to Vinmar’s assertion, the e vidence d emonstrates that Tricon’s practice m atched i ndustry practice. Vinmar’s counter-example, a “very similar” deal that wa s signed, was a ctually a y ear-long c o mmitment to supply MX monthly. More fundamentally, V i n m a r m aintains that the district court erred by confusing agreement to s pecific terms in the sales c o ntract with a ssent to enter

a binding contract. The p roblem with V inmar’s argument is that i t concedes it entered into a binding contract with Tricon before Tricon s ent the sales contract. The parties already agreed on the deal’s essential terms—price and quantity— before they ever started d iscussing additional t erms. That places this matter on
an entirely different footing from those cases that recognize the right o f a party t o “ s t r u c t u r e t h e ir negotiations so that they p reliminarily agree on certain t e r m s , 10 Case: 12-20100 Document: 00512230150 Page: 10 Date Filed: 05/03/2013No. 12-20100

yet protect themselves from being prematurely bound in t h e event they d isagree on other terms.” WTG Gas , 309 S.W.3d at 649. Signatures lines may be strong evidence that the parties d id not intend to be bound by a contract u ntil they signed it. But the blank s ignature blocks here are insufficient, by themselves, to raise a genuine dispute of material fact. All the remaining evidence—the parties’ negotiations, Tricon’s past practice, common industry practice, that the blanks were automatically c omputer generated, and that the p arties m a d e a b i n d ing deal to trade MX before negotiating o ver arbitration—conclusively demonstrates that T ricon and Vinmar r eached a binding agreement to arbitrate even though they did not sign the contract. 1 0

V. Tricon maintains t hat t he district court e rred by awarding postjudgment interest at the default statutory rate, allegedly disregarding t he contractual rate awarded by the arbitration panel. Vinmar replies that the panel lacked authority to a ssign a r ate other than the statutory default and did not purport to d o otherwise. The district court ruled i n V inmar’s favor, because it was unclear whether t h e p anel awarded postjudgment i n t erest at 8.5% and a lso because “courts have held that 28 U.S.C. § 1961 governs a district court judgment confirming a n arbitral award even when t he arbitrators awarded postjudgment interest at a d i f

ferent rate.” Those courts, however, did not confront the issue Tricon raises, which we have not previously considered—whether a r bitrators may award a non-statutory rate if th e p a r t i e s agreed to submit t h at issue to arbitration. The one circuit that has confronted t he question held that the district court had erred by replacing the a warded rate with the statutory default.

1 0 Becaus e the d is trict court correctly held that the parties d id not intend the contract to becom e bind ing only w hen s igned , w e need not reach Tricon’s alternative argum ent that Pas cu and Rajevac signed the d ocum ent by m eans of their em ail s ignatures

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See N ewmont U.S.A. Ltd. v. Ins. Co. of N. Am. , 6 15 F.3d 1268, 1275–77 (10th Cir. 2010). We agree with that court; n onetheless, we affirm, because the arbitrators in this case did not award postjudgment interest, but post-award interest, and that distinction makes a difference.

A. Federal law governs postjudgment interest in federal cases, including diversity cases. S ee Meaux Sur f a c e Pr o t ., Inc. v. Fogleman , 607 F.3d 161, 173 (5th Cir. 2010). Postjudgment interest is not d i scretionary 1 1 but “shall be calcul a t ed from the d ate of t he entry o f the judgment, at a rate equal to t h e w e e k l y average 1-year c onstant m a t urity Treasury yield[.]” 28 U.S.C. § 1961(a). Despite that m andatory language, it is well-settled that parties may contract for a different r ate “ consistent w ith state usury and other applicable laws.” H ymel v. UNC, Inc. , 9 94 F.2d 260, 2 66 (5th Cir. 1993) (internal quotation mark omitted). “But to do so, they m ust specifically contract around the general rule t hat a cause of action reduced to judgment merges into t he judgment and the contractual interest rate therefore disappears f or post-judgment purposes.” Johnson v. Riebesell (In re Riebesell) , 586 F.3d 782, 794 (10th Cir. 2009). 1 2 A judgment confirming an arbitration award

SS like any other civil judgment

SS i s subject to § 1961. 1 3 F or t hat reason, Vinmar is correct that there

1 1 M ea ux Surf

a ce Prot. , 607 F. 3d at 173 (citing 28 U

. S. C

. § 1961( a) ( “Interes t s hall be allow ed on any m oney jud gm ent in a civil cas e recovered in a d is trict court. ”) )

.

1 2 Cf

. Ka sp ar Wi re Works, Inc. v. Leco Eng’g & Ma ch. , Inc. , 575 F. 2d 530, 535 ( 5th Cir. 1978) ( “When the p laintif f obtains a jud gm ent in his f avor, his claim ‘m erges ’ in the jud gm ent; he m ay s eek no f

urther relief on that claim in a s ep arate action. ”)

.
1 3 See 9 U

. S. C. § 13 (“The jud gm ent s o entered s hall have the s am e f orce and ef

f ect, in all res p ects , as , and be s ubject to all the p rovis ions of law relating to, a jud gm ent in an action; a n d i t m ay be enf

orced as if it had been rend ered in an action in the court in w hich it is entered

. ”) ; see a lso, e. g. , Fi d. Fed. Ba nk , FSB v . D urga M a Corp

. 387 F. 3d 1021, 1023 ( 9th Cir. ( continued

. . . ) 12 Case: 12-20100 Document: 00512230150 Page: 12 Date Filed: 05/03/2013No. 12-20100

is no arbitration exception to the g eneral merger doctrine. Furthermore, the circ u i t s have unanimously agreed that “an arbitration p anel may not establish a post-judgment interest rate itself . . . .” Newmont , 615 F.3d at 1277. 1 4 That principle does n ot decide t his case; if the arbitrators awarded a nonstatutory rate, they did so based o n the parties’ s ubmission of the issue to them, not on their own authority. An arbitration panel “may determine whether the parties h ave sufficiently contracted for t heir own rate and, if t hey have, indicate that rate should be applied.” Id. Furthermore, the parties may agree to submit the question of postjudgment interest to arbitration. The merger rule is not absolute; parties can contract for a non-statutory rate of postjudgment int e r e st. If they can contract for an alternative rate directly, there is no reason why they should not be a ble to do so indirectly by agreeing to submit the question to arbitration. 1 5 Also, whether the parties agreed to

an a lternative r ate is a question of intent. “The parties’ intent is a quintessential fact question, and we see no reason why an arbitration panel with authority to decide a contractual dispute cannot a lso determine w hether the contrac t in question includes language clearly, unambiguously, and unequivocally stating the parties’ intent to bypass § 1961.” I d. In other words, if p a rties can submit every other dispute of contract in t erpretation to a rbitration, why m ake an excep1 3 (

. . . continued ) 2004)

.
1 4 A ccord D urga Ma , 387 F. 3d at 1024 ( “[ O ] nce an arbitration aw ard is conf irm ed in f

ed

eral court, the rate sp ecif ied in § 1961 ap p lies

. This is the cas e even if the arbitration aw ard p urp orted to grant p os t- jud gm ent interes t. ” ( inter n a l citation om itted ) ) ; Ca rte Bl a nche ( Si nga
p ore) P t e . , Ltd. v . Ca rte Bl anche Int’l, Ltd. , 888 F. 2d 260, 268–70 ( 2d Cir. 1989) ; Pa rsons & Whi ttem ore A l a . M

a ch. & Serv s. Corp

. v . Yea rgi n Constr. Co. , 744 F. 2d 1482, 1484 (11th Cir. 1984) ( ap p lying increas e in state s tatutory rate to aw ard is s ued at p rior rate)

.

1 5 See M oses H

. C one M em ’l H osp . v . Mercury C

onstr. Corp

. , 460 U. S. 1, 24–25 ( 1983) ( “[ A] ny d oubts concerning the s cop e of arbitrable is sues should be res olved in f avor of arbitration

. . . . ”)

. 13 Case: 12-20100 Document: 00512230150 Page: 13 Date Filed: 05/03/2013No. 12-20100

tion for the question whether they intended to contract a round § 1961? Finally, insofar as an arbitration panel sets a postjudgment r ate as a matter of contract interpretation, its award is enti t led to a lmost a bsolute deference. 1 6 In such a case, the district court w o u ld be required t o enforce the award even if the intent to contract around § 1 961 did not seem clear, unambiguous, and u nequivocal to the court. 1 7 No t h i n g in t he cases cited by Vinmar counsels a different approach. In Durga Ma , 387 F.3d at 1 022, for example, the a rbitration p a n e l s t a ted, “The total amount of this award

. . . shall bear i nterest a t t he statutory rate from [the date of t he award].” The panel did not specify a state r ate rather than the federal r a te and did not distinguish postjudgment from prejudgment interest. See id. at 1024. Of m ore import, there is no i ndication that the parties in Durga M a submitted the issue of postjudgment interest to a rbitration o r that the arbitration panel was purportedly interpreting t h e contract. In Carte Blanche , 888 F.2d at 263, the arbitration p anel awarded postjudgment interest as part of “a series of injunctive rulings d esigned to s ecure a n orderly termination of the f ranchise relationship,” not as a matter of contract interpretation. 1 8

1 6 See G l ov er v . IBP, Inc. , 334 F. 3d 471, 474 ( 5th Cir. 2003) ( “When an arbitration agreem ent gives an arbitrator authority to interp ret and ap p ly a contract, the arbitrator’s cons truction of that contract m us t be enf orced s o long as i t i s ‘rationally inf erable f rom the letter or p urp os e of the und erlyi n g a g r e e m e n t. ’” ( quoting Executone I nf o. Sys. , Inc. v . D a vi s , 26 F

. 3d 1314, 1320 ( 5th Cir. 1994) ) ).

1 7 See E xecutone , 26 F. 3d at 1320 ( “We m us t s us tain an arbitratio n a ward even if w e d is agree w ith the arbitrator’s interp retation of the und erlying contract as long as the arbitrator’s d ecis ion ‘d raw s its es s ence’ f rom th e c o n t r a c t

. ” ( internal quotation m ark s and citation om itted ) )

.

1 8 See a l so Pa rsons & Whi ttem ore , 744 F. 2d at 1483–84 ( recounting that the arbitration p anel aw ard ed p os tjud gm ent interes t at s tate s tatutory rate)

. 14 Case: 12-20100 Document: 00512230150 Page: 14 Date Filed: 05/03/2013No. 12-20100 B. Tricon and Vinmar submitted the issue of postjudgment interest to arbitration. 1 9 T heir a greement authorized arbitration for “[a]ny a nd a ll differences and disputes of w hatsoever nature arising out o f this Agreement.” 2 0 Also, Tricon specifically asked f

o r “ p o s t-judgment interest, as provided by the parties’ cont ract,” in its amended specification of claims for a rbitration, and in its clos i n g statement, Tricon d emanded “post-judgme n t i nterest on i ts d a mages in the amount of 8.5% per annum.” Vinmar disputed Tricon’s claim for interest, contending t here was “no written agreement or other authority authorizing Tricon’s claim for interest.” Because the parties agreed to submit the issue of p ostjudgment interest to a rbitration, the arbitration panel had the authority t o award a non-statutory rate. The dispositive question is whether it did so. Parties w i s h ing to c ontract around t he statutory rate must do so using “clear, u nambiguous[,] a nd unequivocal langua g e , ” otherwise, the contract merely merges into the judgment. 2 1 W hen awarding a non-statutory rate, arbitrators must be just as clear and unequivocal. Tricon c ontends that t he arbitration panel unambiguously a warded a nonstatutory rate of p ostjudgment interest when it granted “ post-award interest” to them “at the r ate o f 8.5% per annum . . . [from] the date of th[e] aw a r d, until paid.” Vinmar maintains that the panel did n ot clearly o r unequivocally alter the statutory rate, in light of the fact that i t granted “post-award” rather than

1 9 We cons true the p arties ’ intentions “generous ly” to d eterm ine w hether they agreed to arbitrate a p articular is s ue. See M i tsubi shi Motors Corp

. v . Sol er Chrysl er- Pl ym outh, Inc. , 473 U

. S. 614, 626 ( 1985)

.

2 0 Cf

. N ew m ont , 615 F. 3d at 1272, 1276 ( hold ing that agreem ent to arbitrate “any d is

p ute aris ing out of

” contract authorized arbitrator to d ecid e p os tjud gm ent interes t is s ues )

.
2 1 Ri ebesel l , 586 F. 3d at 794; Westi nghouse , 371 F. 3d at 102; see a l so Ka na w ha

- G a ul ey Coa l & C

oke Co. v . Pi ttston Mi nera l s G roup , I nc. , Nos

. 11- 1835, 12- 1037, 2012 WL 6622708, at *6 ( 4th Cir. D ec. 20, 2012) ( p er curiam ) ( unp ublis hed ) ; Ja ck H enry & A ssocs. , Inc. v . BSC, Inc. , 487 F. Ap p ’x 246, 260 ( 6th Cir. 2012)

. 15 Case: 12-20100 Document: 00512230150 Page: 15 Date Filed: 05/03/2013No. 12-20100

“postjudgment” i nterest. Tricon r e p l ies t hat distinguishing p ost-award from postjudgment interest “elevates form ov er substance” and is unsupported by authority. Like the district court, we agree with Vinmar. Courts have not f

ound that p arties and arbitration panels clearly, unamb i g u o u s l y, and unequivocally meant to refer to postjudgment interest except where they have e x p ressly referred to postjudgment interest. In Durga Ma , 387 F.3d at 1022, 1024, f

or example, the court held that an arbitration aw a r d c o ntained “no language suggesting that post

- judgment interest is part o f t h e award” where it merely granted “ inte r e s t a t t h e s tatutory rate ” from the date of the award. Similarly, t h e a greement in Westinghouse , 371 F.3d at 102, that “a 15.5 p e r c e n t interest rate would b e added t o any arbitration award ‘from the dat e payment was due to the date payment is made’” was insuff i cient, b ecause it “failed to state that this rate would apply to judgments rendered o n that award.” By contrast, the arbitration p anel in Newmont , 615 F.3d at 1273, “provided for
pre- and post-judgment interest at the rate of 1.5 percent per month.” In Hymel , 994 F.2d at 2 65–66, we noted that the d istrict c ourt had properly granted interest at a non-statutory r ate w here the parties’ contract provided t hat all unpaid amounts “shall b ear i nterest from maturity until paid, both befor e a n d a f ter judgment , at the rate of 9% per annum.” 2 2 Because t he arbitration panel did not

use the w ords “postjudgment interest,” it is far from clear that it meant to award

2 2 Tricon of

fers ITT D i v ersi f

i ed Credi t Corp

. v . Lif

t & Equi p m ent Serv i ce, Inc. (

In re Lif t & Equi p m ent Serv i ce, Inc. ) , 816 F .2d 1013 ( 5th Cir. ) , modif i ed on reh’g , 819 F. 2d 546 ( 5th Cir. 1987) , as a p os s ible ins tance in w hich this court ap p lied the contractual rate of interes t p os tjud gm ent even though the contract d id not s p ecif y “p os tjud gm ent interes t. ” We d id not, how

ever, ad d res s the precis e language of the agreem ent. See i d. at 1018. T hat cas e cannot s tand f or the p rop os ition that any contractual rate of interes t ap p lies p os tjud gm ent, becaus e that
w ould conf

lict w ith the merger rule and w o u l d h a ve m ad e it unneces s ary f or the court in H ym el to em p has ize that the contractual rate of inter e s t ap p lied both bef ore and af

ter jud gm ent. 16 Case: 12-20100 Document: 00512230150 Page: 16 Date Filed: 05/03/2013No. 12-20100

postjudgment interest. 2 3 Nor is it conclusive that the panel a warded interest from t h e date of the award “until paid,” even though, interpre t ed literally, the award would last beyond the judgment. The court did not consider similar language—that interest on an arbitration award would accrue “from the d ate payment w as d u e to the date payment is made”—sufficient i n Westinghouse , 371 F .3d at 102, 2 4 nor did the court i n Riebesell , 5 8 6 F.3d at 794, in w hich the parties agreed that the amount d ue would “ accrue i nterest until payment.” Such b oilerplate language does not demonstrate that the panel intended to c i rcumvent the merger rule. 2 5 Furthermore, the context of the arbitration panel’s grant of interest indicates that it did not intend to award postjudgment interest. The panel cited Tricon and Vinmar’s contractual interest provision a nd noted Tricon’s e ntitlement to “pre-award interest” i n the “Damages” s e ction of its award. It then awarded attorney’s fees, listing in detail what additional f e e s Tricon w ould be awarded in the event of further proceedings to confirm o r vacate the a ward, of an appeal of the district court’s judgment, of a p e tition for review of the a ppeal, or if t he petition were granted and Tricon prevailed. In t h at section, the panel d id not mention interest, as might have been

2 3 See a l so Steven H

. R eis berg & K ris tin M

. P auley, A n A rbi tra tor’s A uthori ty to A w a rd Interest on a n A wa rd Unti l “D a te of Pa ym ent”: Probl em s a nd L i m ita t i ons , 2013 I N T ’ L A R B

. L. R E V

. 25, 29–30 (“To s ucces sf ully ‘contract out’ of the s tatutory p os t- jud gm ent interes t rates , it is theref

ore critical that the language us ed s p ecif ically ref

er to the p os t- jud gm ent p eriod

. ”)

.
2 4 Cf

. a lso Ca rte Bl a nche , 888 F. 2d at 264, 268–70 (hold ing that arbitral aw ard of 10% interes t “to the d ate or d ates of p aym ent” m erged into the jud gm ent)

2 5 See a l so H

osi er v . Ci t i

g roup G l oba l Ma rkets, Inc. , 858 F. Sup p . 2d 1206, 1210 ( D

. Colo. 2012) ( hold ing that arbitration aw ard of “p os t- aw ard interes t at 8% ‘accruing f rom the 31s t d ay af

ter s ervice of this aw ard

. . . until f inal p aym ent of the aw ard ’” was ins uf f icient to d is p lace f

ed eral rate) ; Reis berg & Pauley, sup r a n o t e 23, at 28 ( “In the U nited States , an arbitral aw ard s tating that interes t s hall accrue ‘until the aw ard is p aid ’ at the rate of 8 per cent w ill be unenf

orceable w ith res p ect to the p os t- jud gm ent p eriod

. Ins tead , the f ed eral p os tjud gm ent interes t statute

. . . will govern. ” ( internal citations om itted ) )

. 17 Case: 12-20100 Document: 00512230150 Page: 17 Date Filed: 05/03/2013No. 12-20100

expected if it i ntended to award postjudgment interest. Instead, it confined its brief discussion of interest to a subsequent section, t i tled “ Post-award i nterest.” Although Tricon asked for postjudgment in t e r e s t e xpressly, the panel did not award p ostjudgment i nterest expres s l y . U n d e r t h e a w a r d ’ s r e s i d u a l c l ause—“All claims not expressly granted a re hereby d enied”

—t h e a r b i t r a t o r s d e n i e d Tricon’s request. Finally, it is important in this context to distinguish p ost-award f rom postjudgment interest. The Amer i c a n Ar b i t r a t i o n A s s o c i a t i o n ’ s C o m mercial Arbitration Rule 43(d), which governed this dispute, grants arbitrators the authority to award “interest a s s u ch rate and from such date a s t he arbitrator(s) may deem appropriate.” Arbitrators can therefore be expected t o grant postaward interest frequently, and it w ould c reate confusion to hold that they award postjudgment interest when they w rite “postaward i nterest until paid.” If an arbitration panel has been granted authority by the p arties to award a non-statutory rate of postjudgment interest, and if it wishes to do so, it must e xpressly a ward “postjudgment interest.” This panel did not. The judgment is in all respects AFFIRMED.

18 Case: 12-20100 Document: 00512230150 Page: 18 Date Filed: 05/03/2013