IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20690

BRITTANIA-U NIGERIA, LIMITED, 

 Plaintiff - Appellant

v.

CHEVRON USA, INCORPORATED; ALI MOSHIRI; MONCEF ATTIA, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Plaintiff Brittania-U Nigeria, Limited (“Brittania-U”) sued Defendants 

Chevron U.S.A. Inc. (“Chevron”), Ali Moshiri, and Moncef Attia (collectively, 

“Defendants”) for fraud, misrepresentation, and tortious interference with 

business relations arising out of a bidding process for oil leases in Nigeria. 

Brittania-U now appeals the district court’s denial of its motion to remand and 

the grant of Defendants’ motions to dismiss based on an arbitration provision 

in a confidentiality agreement between Brittania-U and Chevron. Finding no 

error, we AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

August 9, 2017

Lyle W. Cayce

Clerk

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I.

In 2013, Chevron Nigeria, Limited, a division of Chevron, opened a 

bidding process for the sale of its interests in three Oil Mining Leases (“leases”) 

in Nigeria.1 BNP Paribas Securities Corp. (“BNP Paribas”) served as 

Chevron’s financial advisor and agent for the potential transaction. Attia, then 

an employee of BNP Paribas, invited Brittania-U to participate in the bidding

process. Chevron employee Moshiri was also involved in the negotiations. 

Early in the bidding process Brittania-U signed a confidentiality 

agreement, which Chevron also executed. The confidentiality agreement 

contained an arbitration provision:

If the dispute is not resolved pursuant to direct 

negotiations . . . then the dispute shall be finally 

resolved by binding arbitration and either Party may 

initiate such arbitration by giving notice to the other 

Party. The arbitration shall be conducted in 

accordance with the United Nations Commission on 

International Trade Law (“UNCITRAL”) Arbitration 

Rules, except to the extent of conflicts between the 

UNCITRAL Arbitration Rules.

The confidentiality agreement’s arbitration provision also stated that “[t]he 

arbitrator(s) has the power to rule on objections concerning jurisdiction, 

including the existence or validity of this arbitration provision and existence 

or the validity of this Agreement.”

Brittania-U did not win the leases, despite the fact that it bid higher 

than the winning party. As a result, on May 18, 2016, Brittania-U filed suit 

against Chevron, Attia, and Moshiri in Texas state court alleging fraudulent 

 

1 Because this case is on appeal from the grant of a motion to dismiss, we accept

Brittania-U’s allegations as true. See Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).

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inducement in the bidding process against each defendant and tortious 

interference with prospective business relations against only Attia.

Chevron removed the case to federal court. Brittania-U filed a motion to 

remand, and each defendant filed a motion to dismiss. The district court 

denied Brittania-U’s motion to remand and granted Defendants’ motions to 

dismiss. Brittania-U now timely appeals. 

II.

We review a denial of a motion to remand de novo. Int’l Energy Ventures 

Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 199 (5th Cir. 2016). 

We also review de novo a motion to dismiss in favor of arbitration. Gilbert v. 

Donahoe, 751 F.3d 303, 306–07 (5th Cir. 2014).

III.

A.

Chevron asserted two bases for jurisdiction in its notice of removal: first, 

that diversity jurisdiction exists under the diversity statute, 28 U.S.C. § 1332, 

and second, that federal question jurisdiction exists under the Convention on 

the Recognition and Enforcement of Foreign Arbitral Awards (the 

“Convention”), 9 U.S.C. § 203. However, Brittania-U argues that Chevron 

improperly removed under both statutes so that the district court erred in 

denying Brittania-U’s motion to remand.

We disagree with Brittania-U and find that jurisdiction exists under the 

Convention. The Convention Act provides United States courts with 

jurisdiction over “[a]n action or proceeding falling under the Convention . . . 

regardless of the amount in controversy.” Safety Nat’l Cas. Corp. v. Certain 

Underwriters At Lloyd’s, London, 587 F.3d 714, 724 (5th Cir. 2009) (alterations 

in original) (citation omitted); see also 9 U.S.C. § 203 (stating that “[a]n action 

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or proceeding falling under the Convention shall be deemed to arise under the 

laws and treaties of the United States.”); 9 U.S.C. § 202 (explaining when an 

agreement falls under the Convention). The requirements for Convention 

jurisdiction are typically “(1) there is a written agreement to arbitrate the 

matter; (2) the agreement provides for arbitration in a Convention signatory 

nation; (3) the agreement arises out of a commercial legal relationship; and (4) 

a party to the agreement is not an American citizen.” Freudensprung v. 

Offshore Tech. Servs., Inc., 379 F.3d 327, 339 (5th Cir. 2004) (citing 9 U.S.C. 

§ 202) (citation omitted).

But the presence of a non-U.S. party is not required in all circumstances. 

Freudensprung, 379 F.3d at 340. “Convention [jurisdiction] may apply in such 

cases provided that there is a ‘reasonable relation’ between the parties’ 

commercial relationship and some ‘important foreign element.’” Id. (quoting 

Jones v. Sea Tow Servs., Inc., 30 F.3d 360, 366 (2d Cir. 1994); Lander Co. v. 

MMP Invs., Inc., 107 F.3d 476, 481 (7th Cir. 1997)). For an arbitration 

agreement that is “entirely between citizens of the United States” to fall under 

the Convention Act, it must “involve[] property located abroad, envisage[] 

performance or enforcement abroad, or ha[ve] some other reasonable relation 

with one or more foreign states.” 9 U.S.C. § 202; see also Freudensprung, 379 

F.3d at 339–41; S & T Oil Equip. & Mach., Ltd. v. Juridica Invs. Ltd., 456 F. 

App’x 481, 484 (5th Cir. 2012).2

Here, Defendants are citizens of the United States, but the citizenship of 

Brittania-U is unclear. See Stiftung v. Plains Marketing, L.P., 603 F.3d 295, 

298 (5th Cir. 2010) (looking to whether a business entity was considered legally 

 

2 Although S & T is not “controlling precedent,” it “may be [cited as] persuasive 

authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

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independent or a “juridical person” under the laws of that foreign state in order 

to determine the entity’s citizenship). We need not resolve the question of 

Brittania-U’s citizenship because even if Brittania-U were an American 

business entity so that all members to the agreement were U.S. parties, 

Convention jurisdiction nevertheless exists. The disputed transaction and 

related written arbitration provisions involve property located abroad and 

envisage performance abroad—the leases were for sale in Nigeria and all 

performance was to occur in Nigeria. Furthermore, the arbitration provision

provides for arbitration to occur in London, and the United Kingdom is a 

signatory to the Convention. See, e.g., Smith/Enron Cogeneration Ltd. P’ship

v. Smith Cogeneration Intern., Inc., 198 F.3d 88, 93 n.5 (2d Cir. 1999). 

Therefore, under these circumstances, the district court properly had 

jurisdiction under the Convention.

Removal under the Convention was also proper. The Convention’s

removal provision, 9 U.S.C. § 205, allows for removal to a district court “at any 

time before the trial” “[w]here the subject matter of an action or proceeding 

pending in a State court relates to an arbitration agreement or award falling 

under the Convention.” If “an arbitration agreement falling under the 

Convention could conceivably affect the outcome of the plaintiff’s case, the 

agreement ‘relates to’ to the plaintiff’s suit. Thus, [a] district court will have 

jurisdiction under § 205 over just about any suit in which a defendant contends 

that an arbitration clause . . . provides a defense.” Beiser v. Weyler, 284 F.3d 

665, 669 (5th Cir. 2002).

Here, the agreement relates to Brittania-U’s suit. Like the defendant’s 

argument in Beiser, Defendants’ arguments are all attempts to get BrittaniaU to submit to arbitration. Beiser, 284 F.3d at 669. Therefore, “the arbitration 

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agreements [here] could conceivably affect the disposition of [Brittania-U’s] 

claims.” See id. at 670. Accordingly, Chevron’s removal was proper, and we 

affirm the district court’s denial of Brittania-U’s motion to remand. We 

pretermit the issue of whether removal was proper under the diversity statute 

because a court needs only a single jurisdictional basis to retain its power. 

B.

Brittania-U also contends that the district court erred in dismissing the 

case after concluding that the arbitration provision delegated “gateway issues,” 

such as “the validity and enforcement” of the arbitration provision. We 

disagree with Brittania-U and affirm. 

“Just as the arbitrability of the merits of a dispute depends upon whether 

the parties agreed to arbitrate that dispute, so the question ‘who has the 

primary power to decide arbitrability’ turns upon what the parties agreed 

about that matter.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943

(1995) (citations omitted). In Kubala v. Supreme Production Services, Inc., 830 

F.3d 199 (5th Cir. 2016), we provided an in-depth explanation of who decides 

what when a contract includes an arbitration provision. We reasoned that the 

“[e]nforcement of an arbitration agreement involves two analytical steps. The 

first is contract formation—whether the parties entered into any arbitration 

agreement at all.” Id. at 201. The second typically “involves contract 

interpretation to determine whether this claim is covered by the arbitration 

agreement.” Id. “[W]here the arbitration agreement contains a delegation 

clause giving the arbitrator the primary power to rule on the arbitrability[,] 

. . . [a court] performs the first step . . . as it always does,” but instead of moving 

directly to the second step, a court must first determine “whether the purported 

delegation clause is in fact a delegation clause—that is, if it evinces an intent 

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to have the arbitrator decide whether a given claim must be arbitrated.” Id. 

at 201–02. 

In making this analysis, “[w]e will not assume that the parties agreed to 

arbitrate arbitrability ‘[u]nless the parties clearly and unmistakably provide 

otherwise.’” Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 

F.3d 671, 675 (5th Cir. 2012) (second alteration in original) (quoting AT & T 

Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649 (1986)). If a court 

does conclude that the parties to an arbitration agreement clearly and 

unmistakably delegated arbitrability, it “must refer the claim to arbitration[;]” 

however, if a court concludes that the parties did not, it “must perform the 

ordinary arbitrability analysis.” Kubala, 830 F.3d at 203. Accordingly, we

must decide if Defendants and Brittania-U clearly and unmistakably provided 

for the arbitrators to decide arbitrability. See Petrofrac, 687 F.3d at 675.

Here, the arbitration provision’s adoption of the United Nations 

Commission on International Trade Law (“UNCITRAL”) Arbitration Rules 

clearly and unmistakably delegates arbitrability. The arbitration provision 

specifically states that “[t]he arbitration shall be conducted in accordance with 

[UNCITRAL] Arbitration Rules.” 

In Petrofrac, 687 F.3d at 675, we concluded that incorporating rules from 

the American Arbitration Association (“AAA”) clearly and unmistakably 

expressed the parties’ intent to leave the question of arbitrability to an 

arbitrator. The AAA Rules at issue in Petrofrac stated that “[t]he arbitrator 

shall have the power to rule on his or her own jurisdiction, including any 

objections with respect to the existence, scope or validity of the arbitration 

agreement.” Id. (alteration in original). In coming to its holding, “[w]e agree[d] 

with most of our sister circuits.” Id. 

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Three of our sister circuits have held that the language from the 

UNCITRAL Arbitration Rules also clearly and unmistakably delegates

arbitrability. See Chevron Corp. v. Ecuador, 795 F.3d 200, 207–08 (D.C. Cir. 

2015), cert. denied, 136 S. Ct. 2410 (2016); Oracle Am., Inc. v. Myriad Group 

A.G., 724 F.3d 1069, 1073 (9th Cir. 2013); Schneider v. Kingdom of Thailand, 

688 F.3d 68, 73–74 (2d Cir. 2012). Although the UNCITRAL Rules do not 

delegate arbitrability as obviously as the AAA Rules in that they do not 

mention explicitly the arbitrator’s ability to determine the scope or validity of 

the arbitration agreement, we nevertheless agree with the other circuits’

conclusions that incorporation of the UNCITRAL Rules clearly and 

unmistakably delegates arbitrability by granting the arbitrators authority to 

decide their own jurisdiction. See Oracle Am., 724 F.3d at 1073 (“By giving the 

arbitral tribunal the authority to decide its own jurisdiction, . . . the . . . 

UNCITRAL rules vest the arbitrator with the apparent authority to decide 

questions of arbitrability.”). The district court therefore did not err in 

dismissing this dispute so that it may be arbitrated.

Moshiri and Attia did not sign the confidentiality agreement and its 

arbitration provision. But we nevertheless conclude that the delegation of 

arbitrability applies to them as well. Under the Federal Arbitration Act, 

“‘background principles’ of state contract law, when relevant ‘allow a contract 

to be enforced by or against nonparties to the contract through assumption, 

piercing the corporate veil, alter ego, incorporation by reference, third-party 

beneficiary theories, waiver and estoppel.’” Crawford Prof’l Drugs, Inc. v. CVS 

Caremark Corp., 748 F.3d 249, 257 (5th Cir. 2014) (quoting Arthur Andersen 

LLP v. Carlisle, 556 U.S. 624, 631 (2009)); see also Hays v. HCA Holdings, Inc., 

838 F.3d 605, 609 & n.1 (5th Cir. 2016) (applying Texas law of direct benefits 

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estoppel). Typically, a court would answer this question and determine these 

circumstances, just as it would answer what is arbitrable, because “[w]ho is 

actually bound by an arbitration agreement is a function of the intent of the 

parties, as expressed in the terms of the agreement.” The Rice Co. (Suisse), 

S.A. v. Precious Flowers Ltd., 523 F.3d 528, 537 (5th Cir. 2008) (quoting Bridas 

S.A.P.I.C. v. Gov’t of Turkm., 345 F.3d 347, 355 (5th Cir. 2003)). But we must 

first determine whether claims against Moshiri and Attia were also clearly and 

unmistakably delegated to the arbitrator. See Kubala, 830 F.3d at 201–02. 

In making this determination, we find Contec Corporation v. Remote 

Solution, Co., 398 F.3d 205, 211 (2d Cir. 2005) instructive. In Contec, Contec 

Corporation sued Remote Solution Co., Ltd. (“Remote Solution”) to compel an 

indemnification dispute to arbitration. Id. at 207. Contec Corporation was a 

nonsignatory to the indemnification agreement containing a clause delegating 

arbitrability but nevertheless sought to enforce the delegation clause in its 

dispute with Remote Solution as a successor in interest to a signatory. See id. 

The Second Circuit held that the agreement’s delegation of arbitrability 

applied to the dispute. Id. at 211. In coming to this conclusion, the court noted

that the “the party seeking to avoid arbitration was a signatory to the 

arbitration agreement.” Id. The court reasoned that this was “an important 

indicator of [the signatory’s] expectation and intent when binding itself to the 

. . . [a]greement,” which justified binding the signatory, Remote Solution, to 

the arbitration provision’s delegation clause. See id.

Like in Contec, the Defendants here—a signatory and two 

nonsignatories—are attempting to enforce the arbitration provision against 

signatory Brittania-U. Although the confidentiality agreement does not 

explicitly state that it binds nonsignatories to the agreement, it does explicitly 

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bind Brittania-U. Therefore, as in Contec, the language of the agreement 

clearly and unmistakably delegates arbitrability, even with regard to 

Brittania-U’s dispute with Moshiri and Attia.

Accordingly, the district court did not err in recognizing that the 

confidentiality agreement’s arbitration provision delegated the question of 

arbitrability to the arbitrators. 

AFFIRMED.

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