FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

POLIMASTER LTD.; NA&SE TRADING 

CO., LIMITED,

No. 08-15708 Plaintiffs-Appellants,  D.C. No. v.

05-CV-01887-JF

RAE SYSTEMS, INC.,

Defendant-Appellee. 

POLIMASTER LTD.; NA&SE TRADING 

COMPANY LTD., No. 09-15369

Plaintiffs-Appellants, D.C. No.  v. 5:05-cv-01887-JF

RAE SYSTEMS, INC., OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Jeremy D. Fogel, District Judge, Presiding

Argued and Submitted

January 15, 2010—San Francisco, California

Filed September 28, 2010

Before: J. Clifford Wallace, Procter Hug, Jr. and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Wallace;

Dissent by Judge Clifton

16549
COUNSEL

Kevin R. Garden, Esq., Alexandria, Virginia, for appellants

Polimaster Ltd., et al.

John P. Flynn, Esq., San Francisco, California, for appellee

RAE Systems, Inc.

OPINION

WALLACE, Senior Circuit Judge:

Appellants Polimaster Ltd. and Na&Se Trading Company,

Ltd. (Na&Se) (collectively, Polimaster) appeal from the district court’s confirmation of an arbitration award against them

and in favor of appellee RAE Systems, Inc. (RAE). They also

appeal from the district court’s subsequent order granting preand post-judgment interest on the arbitration award. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 9 U.S.C.

§ 16(a)(1)(D), and we reverse and remand.

I.

Appellant Polimaster Ltd. is a limited liability company

based in Belarus, engaged in the design and manufacture of

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16553
radiation monitoring instruments. Appellant Na&Se is a corporation based in Cyprus, engaged in intellectual property

licensing. In January 2003, Polimaster Ltd. and Na&Se

entered into a contractual relationship with RAE, a Delaware

corporation with its principal place of business in California.

The parties signed two agreements, the “Nonexclusive

License for Proprietary Information Usage” (License Agreement) and the “Product and Component Buy/Sell Agreement”

(Buy/Sell Agreement), which provided for RAE’s manufacture and distribution of Polimaster-developed radiation detection devices.

The License Agreement refers to Na&Se as the “Licensor,”

RAE as the “Licensee,” Na&Se and RAE as the “Parties,” and

Polimaster Ltd. as the “Manufacturer.” The License Agreement contains a dispute resolution provision that states:

9.1 In case of the dispute between the Licensor and

the Licensee on the issues provided for by the present Agreement the Parties shall take every effort for

their settlement by negotiations.

9.2 In case of failure to settle the mentioned disputes

by means of negotiations they should be settled by

means of arbitration at the defendant’s side.

The parties agree that “defendant’s side” means “defendant’s

site,” that is, the geographical location of the defendant’s

principal place of business. The Buy/Sell Agreement also

contains an arbitration clause, which states, “7.1 The Parties

shall exert the best efforts to settle up any disputes by means

of negotiations, and in case of failure to reach an agreement

the disputes shall be settled by arbitration at the defendant’s

site.”

Disputes arose in the course of performing the agreements.

In May 2005, Polimaster filed an action against RAE in the

United States District Court for the Northern District of Cali16554 POLIMASTER LTD. v. RAE SYSTEMS, INC.
fornia. After the district court denied Polimaster’s request for

a preliminary injunction, the parties negotiated to submit Polimaster’s claims to arbitration in California (that is, defendant

RAE’s “site,” as directed in the agreements). In May 2006,

Polimaster and RAE commenced arbitration by a joint letter

to “JAMS,” an arbitration provider organization (since

renamed “JAMS, The Resolution Experts”). Although the

parties jointly submitted to arbitration, Polimaster made the

following reservation:

It is Polimaster’s position that no counterclaims will

be filed in this matter based on the requirement in

the agreement that all such claims be filed in the

location of the party against whom such claims are

brought. Because Polimaster is located in Belarus,

Polimaster asserts that all such claims against it shall

be brought in that location.

In July 2006, Polimaster submitted its demand for arbitration, setting forth claims against RAE for breach of contract

under both the License Agreement and the Buy/Sell Agreement, misappropriation of trade secrets, and unfair competition. In August 2006, RAE submitted its answer to

Polimaster’s demand for arbitration, in which RAE set forth

not only its affirmative defenses and responses to Polimaster’s

allegations, but also RAE’s own claims against Polimaster,

which it called “counterclaims.” RAE asserted several claims

sounding in contract and tort, including interference with prospective economic advantage, fraud and negligent misrepresentation.

Polimaster asked the arbitrator to dismiss RAE’s “counterclaims,” arguing that any claims by RAE against Polimaster

could not be arbitrated at RAE’s site in California, because

the arbitration agreement required that they be brought at the

“defendant’s [site],” that is, at Polimaster’s site. The arbitrator

refused to dismiss RAE’s counterclaims, reasoning that the

contract did not specify where counterclaims should be

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16555
brought. To fill the perceived gap, he applied procedural rules

regarding compulsory counterclaims, as defined in Federal

Rules of Civil Procedure, California Rules of Civil Procedure,

and JAMS rules. The arbitrator decided it would be contrary

to “notions of fairness, judicial economy and efficiency” to

“[p]rosecut[e] a claim with affirmative defenses in one venue

while simultaneously prosecuting counterclaims almost identical to the affirmative defenses in another [venue].” Instead,

he reasoned, RAE’s “counterclaims” should be “heard in the

same venue as the properly situated original arbitration claims

[by Polimaster against RAE].”

The arbitrator in California ultimately adjudicated both

Polimaster’s claims and RAE’s “counterclaims.” The arbitrator issued an Interim Award in July 2007, which rejected all

of Polimaster’s claims and awarded damages to RAE on its

successful counterclaim, in the amount of $2,412,432. By a

Final Arbitral Award dated September 20, 2007, the arbitrator

confirmed the findings and conclusions of the Interim Award

and further awarded costs to RAE, as the prevailing party, in

the amount of $46,213.15.

Thereafter, RAE sought confirmation of the arbitration

award in the United States District Court for the Northern

District of California. Polimaster moved to vacate the award,

arguing that the arbitral procedure was not in accordance with

the parties’ agreement and that the arbitrator exceeded his

powers by allowing RAE to assert “counterclaims” at RAE’s

own site in California rather than at the “defendant’s [site]”

as required by the agreement. The district court confirmed the

award to RAE, and this appeal followed.

II.

[1] The parties agree that the arbitration agreement and

award are governed by the Convention on the Recognition

and Enforcement of Foreign Arbitral Awards (the New York

Convention), June 10, 1958, 21 U.S.T. 2517. We must con16556 POLIMASTER LTD. v. RAE SYSTEMS, INC.
firm an arbitration award falling under the New York Convention unless we determine that “one of the grounds for

refusal or deferral of recognition or enforcement of the award

specified in the [sic] said Convention.” 9 U.S.C. § 207; see

also Mgmt. & Technical Consultants S.A. v. Parsons-Jurden

Int’l Corp., 820 F.2d 1531 (9th Cir. 1987) (Parsons-Jurden).

[2] The New York Convention enumerates seven defenses

to the recognition or enforcement of an arbitral award. These

grounds include, among others, that the award “deals with a

difference not contemplated by or not falling within the terms

of the submission to arbitration,” that the parties were under

some incapacity or their agreement is not valid under the law

of the country where the award is made, or that the party

against whom the award is invoked was not able to present its

case. 21 U.S.T. 2517, Art. V, §§ 1(a)-(c). In this appeal, Polimaster invokes the defense set forth in Article V, § 1(d), of

the New York Convention:

(d) The composition of the arbitral authority or the

arbitral procedure was not in accordance with the

agreement of the parties, or, failing such agreement,

was not in accordance with the law of the country

where the arbitration took place.

21 U.S.T. 2517, Art. V, § 1(d). Polimaster asserts that the

arbitration procedure was contrary to the parties’ agreement

because the arbitrator allowed RAE to bring its claims, calling

them “counterclaims,” against Polimaster in an arbitration

proceeding in California, thereby permitting RAE to bring a

claim at its own site.

We review de novo whether a party established a defense

to enforcement of an arbitration award under the New York

Convention. China Nat’l Metal Prods. Import/Export Co. v.

Apex Digital, Inc., 379 F.3d 796, 799 (9th Cir. 2004). As the

party seeking to avoid enforcement of the award, Polimaster

has the burden of showing the existence of a New York ConPOLIMASTER LTD. v. RAE SYSTEMS, INC. 16557
vention defense. Ministry of Def. of the Islamic Republic of

Iran v. Gould, Inc., 969 F.2d 764, 770 (9th Cir. 1992). Polimaster’s burden is substantial because the public policy in

favor of international arbitration is strong, id., and the New

York Convention defenses are interpreted narrowly. See

China Minmetals Materials Imp. & Exp. Co., Ltd. v. Chi Mei

Corp., 334 F.3d 274, 282-83 (3d Cir. 2003); Gould, 969 F.2d

at 770 (adopting narrow interpretation of defense based on

arbitrator exceeding authority); Parsons & Whittemore Overseas Co. v. Societe Generale de L’Industrie Du Papier

(RAKTA), 508 F.2d 969, 976 (2d Cir. 1974) (adopting narrow

interpretation of public policy defense).

[3] The grounds for refusing confirmation of an award

under the Federal Arbitration Act (FAA), 9 U.S.C. § 10, generally track those under the New York Convention, although

they are not coextensive. See Parsons-Jurden, 820 F.2d at

1534. When interpreting the defenses to confirmation of an

arbitration award under the New York Convention, we may

look to authority under the FAA. Parsons & Whittemore, 508

F.2d at 974.

III.

We may decline enforcement of an arbitral award on the

basis that “the arbitral procedure was not in accordance with

the agreement of the parties.” 21 U.S.T. 2517, Art. V,

§ (1)(d). To determine whether the procedure used was contrary to the parties’ agreed arbitral procedures, we must begin

with the language of the parties’ arbitration agreement. See

Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica,

Inc., 403 F.3d 85, 91 (2d Cir. 2005); Coast Trading Co. v.

Pac. Molasses Co., 681 F.2d 1195, 1198 (9th Cir. 1982); cf.

generally Howsam v. Dean Witter Reynolds, Inc., 537 U.S.

79, 84 (2002) (holding that, in the context of an arbitrability

determination, the court reviews the contract de novo);

Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 719 (9th Cir. 1999)

(also in context of arbitrability determination, the interpreta16558 POLIMASTER LTD. v. RAE SYSTEMS, INC.
tion of the relevant contractual provision was subject to de

novo review).

A.

In this case, the arbitration agreement provided that disputes “should be settled by means of arbitration at the defendant’s [site].” According to Polimaster, the arbitration

agreement required RAE’s claims to be arbitrated in Belarus.

According to RAE, the arbitration agreement was ambiguous

concerning the treatment of counterclaims. Thus, according to

RAE, the arbitrator correctly, and within the scope of his

authority, resolved the ambiguity so as to allow litigation of

RAE’s counterclaims at its own site in California.

For the reasons stated hereafter, we conclude that the arbitration agreement required that all requests for affirmative

relief, whether styled as claims or counterclaims, be arbitrated

at the defendant’s site. The arbitration agreement required that

any “dispute” be arbitrated at “the defendant’s [site].” The

term “dispute” encompasses both claims and counterclaims.

Moreover, a party is a “defendant” as to any dispute where

another party seeks damages or some other form of relief

against him. Therefore, Polimaster was clearly the “defendant” as to RAE’s “counterclaims.” The “dispute” embodied

in those claims should not have been arbitrated at RAE’s site

in California.

1.

[4] The arbitration agreement was not ambiguous. The

agreement contemplated that all claims should be asserted at

the defendant’s site. This provided a clear designation of the

forum for arbitration. Cf, e.g., Bauhinia Corp. v. China Nat’l

Mach. & Equip. Imp. & Exp. Corp., 819 F.2d 247, 249 (9th

Cir. 1987) (ambiguous forum selection provision). The

requirement of arbitration at the defendant’s site is effectively

a forum selection clause, in which the parties agreed to arbiPOLIMASTER LTD. v. RAE SYSTEMS, INC. 16559
trate at the location of a defendant’s principal place of business. This choice of forum is presumptively enforceable. See

Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974); M/S

Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13-14 (1972).

The dissent takes a different position: it asserts that the

arbitration agreement is ambiguous. According to our dissenting colleague, “To the extent that any answer can be gleaned

from the language used in the agreement, I think the language

cuts slightly against the majority opinion’s interpretation.”

The dissent points out that the arbitration clause in question

provides that, in the event that “the mentioned disputes” cannot be settled by “negotiations[,] they should be settled by

means of arbitration at the defendant’s [site].” Because the

word “disputes” is plural, but the words “defendant” and “side

[site]” are singular, the dissent reasons that “[t]he parties

anticipated that there could be multiple disagreements, yet the

‘defendant’s site’ refers to only one location.”

[5] The dissent’s construction of the arbitration clause,

however, is simply not reasonable. The term “disputes” as

used in section 9.2 of the Agreement refers back to the category of disputes made subject to the arbitration clause, as

defined in section 9.1 of the Agreement. Section 9.1 provides

that, in the case of “the dispute [sic] between the Licensee and

the Licensor on the issue provided for by the present Agreement” the parties were to make “every effort for their settlement by means of negotiations.” Section 9.2 contemplates

that, in the event that “the mentioned disputes” cannot be settled by negotiations, they should be “settled by means of arbitration at the defendant’s [site].” Thus, the plural term

“disputes,” as used in section 9.2 of the Agreement, is merely

a reference back to the covered disputes set forth in section

9.1, i.e. disputes “on the issues provided for by the present

Agreement.” When viewed in context, the plural term “disputes,” cannot reasonably be said to mean consolidation of

multiple claims into a single arbitration because that would be

16560 POLIMASTER LTD. v. RAE SYSTEMS, INC.
contrary to the more specific forum-selection clause contained

in section 9.2 of the Agreement.

2.

[6] The arbitrator opined that the arbitration clause was

indeterminate because it failed to provide expressly for the

treatment of counterclaims. The dissent likewise concludes

that the arbitration clause is faulty for failure to contemplate

counterclaims. But that the agreement neither expressly

included nor excluded counterclaims does not render it indeterminate. There is no reason why the arbitration agreement

had to provide for the treatment of counterclaims. To conclude that the arbitration clause is ambiguous on this basis

sets up a rigged game: criticizing the failure to provide for the

treatment of counterclaims presumes that such a clause is a

necessary, indispensable, or essential component of an agreement to arbitrate. But there is no reason that this must be so.

The dissent argues that, “it is not a novel or obscure practice to resolve all claims, including counterclaims, in a single

proceeding that has already commenced.” The dissent, like

the arbitrator below, also points to rules pertaining to counterclaims in the Federal Rules of Civil Procedure, the California

Rules of Civil Procedure, and the rules of the arbitration

forum agreed upon by the parties (JAMS). The dissent argues

that the arbitration clause in this case is ambiguous because

“[t]he prosecution of counterclaims in the same proceeding is

broadly recognized in international arbitration.” The dissent

then points to general procedural rules and guidelines from

several international arbitration provider organizations that

typically would apply to the extent those rules are consistent

with a given agreement to arbitrate. See, e.g., International

Chamber of Commerce (ICC) Rules of Arbitration art. 5;

London Court of International Arbitration Rules art. 2.1(b);

United Nations Commission on International Trade Law

(UNCITRAL) Arbitration Rules art. 19.

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16561
[7] Nevertheless, although the joinder of counterclaims

into a pending proceeding is widely contemplated by various

rules of procedure, the parties simply did not incorporate

these rules into their contract. Instead, once the assumption

that counterclaims will be joined into a pending proceeding is

recognized as what it is — merely an assumption — it is clear

that the parties’ clause was adequate to express their intent.

To put the point differently, the parties’ clause was adequate

to provide for separate arbitrations at the defendant’s site. See,

e.g. Gary B. Born, International Commercial Arbitration in

the United States 6 (1994). There is no reason to require the

parties to include contractual language specifically defeating

or negating the joinder of claims. The dissent’s viewpoint is,

in effect, based on the dissent’s assumption that counterclaims

should be joined in a pending proceeding. We believe it

would be circular to interpret the parties’ agreement therefore

by reference to rules that the parties did not incorporate into

their contract and which are inconsistent with the parties’

agreement to arbitrate. See, e.g., Emmanuel Gaillard & John

Savage, Eds., Fouchard, Gaillard, Goldman on International

Commercial Arbitration 632-53 (1999) (pointing out that the

procedural rules of the forum need not apply to conduct of

international arbitration).

Indeed, to the extent that we look to, or incorporate, our

domestic rules of procedure in construing the arbitration

clause at hand, we believe those rules tend to support our

interpretation. Counterclaims are “affirmative claims for

relief” and are “offensive in nature.” Daniel R. Coquilette, et

al., eds., Moore’s Federal Practice § 13.90[1] (3d Ed. 2010);

see also FDIC v. F.S.S.S., 829 F. Supp. 317, 322 n.11 (D.

Alaska 1993) (“Counterclaims are separate claims independent of the plaintiff’s underlying claim.”); In re Concept

Clubs, Inc., 154 B.R. 581, 586 n.4 (D. Utah 1993). Under

Federal Rule of Civil Procedure 13, a party is the “defendant”

against a counterclaim. See Moore’s Federal Practice

§ 13.90[2][a]; see also Rainbow Mgmt. Group v. Atlantis Submarines Haw., L.P., 158 F.R.D. 656, 659 (D. Haw. 1994);

16562 POLIMASTER LTD. v. RAE SYSTEMS, INC.
Earle M. Jorgenson Co. v. T.I. U.S., Ltd., 133 F.R.D. 472, 475

(E.D. Pa. 1991) (“Any party asserting a claim, whether an

original claim, counterclaim, cross-claim or third-party claim,

becomes an opposing party to the party sued” (internal citations and quotation marks omitted)). 

[8] The dissent points out that the term “defendant” could

have a different meaning depending on the context. For

instance, in litigation, “defendant” is sometimes used as a

“shorthand” to “distinguish the original defending party from

the party initially on the offensive.” See Moore’s Federal

Practice at § 13.90[2]. The term, however, is used in the latter

sense only when it is clear from the relevant context that the

court, tribunal, arbitrator, or the parties have formally designated one particular side as the “defendant.” See id. In this

case, the context and structure of the arbitration clause clearly

indicate that the parties understood the “defendant” as a party

against whom the other asserts a “dispute” arising out of the

License Agreement or the Buy/Sell Agreement. Absolutely

nothing in these agreements suggests that the parties understood the term “defendant” as a formal designation limited to

the party initially on the defensive. It is well established that

a counterclaim results in shifting the parties so that the party

counterclaiming becomes the plaintiff on the counterclaim

and the original plaintiff becomes the defendant. See Roberts

Min. & Mill v. Schrader, 95 F.2d 522, 524 (9th Cir. 1938)

(explaining that a “counterclaim [is], in effect, a new suit, in

which Schrader was plaintiff and Smith was defendant”).

Accordingly, there can be no dispute that Polimaster became

the “defendant” as to RAE’s claims against it for affirmative

relief, regardless of how RAE styled those claims. Under the

clear language of the arbitration agreement, Polimaster was

entitled to have the claims against it arbitrated in its home

forum.

[9] We acknowledge that the arbitration agreement in this

case is an unusual one. The arbitration clause does not provide for a choice of law or a choice of procedural rules. See

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16563
generally Born at 24 (describing the several choice of law

issues present in international arbitrations); Alan Redfern &

Martin Hunter, Law and Practice of International Commercial Arbitration, 163-168 (2002). The arbitration clause also

does not provide for the number of arbitrators or a method for

their appointment. Cf., e.g., ICC Standard Arbitration Clause,

available at www.iccarbitration.org (last visited July 13,

2010) (recommending clause that states: “[a]ll disputes arising out of or in connection with the present contract shall be

finally settled under the Rules of Arbitration of the [ICC] by

one or more arbitrators appointed in accordance with the said

Rules”); American Arbitration Association, Drafting Dispute

Resolution Clauses: A Practical Guide at 4-5 (Sept. 1, 2007,

available at www.adr.org, last visited July 13, 2010) (setting

forth checklist of subjects generally appropriate for stipulation

in arbitration clause); id. at 8-9 (providing several model arbitration clauses). In this case, the clause provides only for a

choice of forum: defendants’ [Polimaster] site. That choice is

entitled to enforcement.

B.

Admittedly, we have interpreted the parties’ arbitration

clause so as to permit an inefficient result: parallel arbitrations

in distant fora regarding similar and/or related topics and disputes. Indeed, the dissent accurately points out that requiring

arbitration of a “counterclaim” in a separate proceeding at

Polimaster’s site in Belarus “would represent an inefficient

way to resolve disputes.” Over this point there is no dispute.

But we do not agree with the implication that the dissent

draws from the apparent inefficiency of the parties’ agreed

procedures. The dissent argues that the arbitration clause

should be construed in a manner to avoid inefficiency,

because “[p]arties contractually adopting arbitration as the

method for resolving disputes commonly do so to achieve

efficiency.” The dissent further adds that “[i]t is logical to reason that the parties to this agreement did not intend an inefficient result.” Similarly, the arbitrator opined that parallel

16564 POLIMASTER LTD. v. RAE SYSTEMS, INC.
arbitrations in two fora “would appear to be inconsistent with

the economic benefits of arbitration on which the parties

relied in agreeing to arbitration.”

We disagree with the proposition that our interpretation of

the arbitration clause should be controlled by efficiency concerns. There are two independent reasons why we cannot

impose upon the arbitration clause an interpretation in the

interests of confirming it to an imputed notion of efficiency.

We now discuss those two reasons.

1.

First, the policy favoring arbitration “is at bottom a policy

guaranteeing the enforcement of private contractual arrangements.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 625 (1985). We must enforce the parties’

agreement according to its terms, even if the result is inefficient. See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213,

217-21 (1985) (arbitration required even when it results in

inefficient procedures: “The legislative history of the Act

establishes that the purpose behind its passage was to ensure

judicial enforcement of privately made agreements to arbitrate. We therefore reject the suggestion that the overriding

goal of the Arbitration Act was to promote the expeditious

resolution of claims”). It is true that it may be inefficient to

have multiple arbitrations regarding the parties’ dealings in

different fora before different arbitrators. See China Nat’l,

379 F.3d at 802. But we cannot override the express terms of

the parties’ agreement, because parties are free to agree to

inefficient arbitration procedures. See Byrd, 470 U.S. at 221

(“we rigorously enforce agreements to arbitrate, even if the

result is ‘piecemeal’ litigation”); Moses H. Cone Mem’l Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 20 (1983) (compelling

arbitration where it would result in bifurcated proceedings).

Thus, the “efficiency” position adopted by the arbitrator and

the dissent is inconsistent with the true basis of the “federal

policy favoring arbitration.”

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16565
In a similar vein, RAE asserts that we should “construe

arbitral authority broadly to comport with the enforcementfacilitating thrust of the Convention and the policy favoring

arbitration.” See Parsons-Jurden, 820 F.2d at 1534. While we

recognize that the New York Convention was enacted to promote the enforceability of international arbitration agreements, that Convention, like the federal policy favoring

arbitration more generally, favors enforcement of arbitration

clauses according to the intent of the contracting parties. The

New York Convention “recognizes the central role of the parties in fashioning the arbitration procedure, and provides

sanctions for failure to adhere to the agreed procedures.” Born

at 44; see also Rhone Mediterranee Compagnia Francese Di

Assicurazioni E Riassicurazoni v. Lauro, 712 F.2d 50, 54 (3d

Cir. 1983).

[10] We cannot, therefore, “overlook agreed-upon arbitral

procedures” in favor of the enforcement of an arbitration

award. Encyclopaedia Universalis, 403 F.3d at 91. We also

cannot utilize the federal policy favoring arbitration to justify

the imposition of general procedural rules at the expense of

the parties’ agreement. See Cargill Rice, Inc. v. Empresa

Nicaraguense Dealimentos Basicos, 25 F.3d 223, 225-26 (4th

Cir. 1994); Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830,

831 (11th Cir. 1991). Here, the parties expressly agreed to

submit disputes to arbitration at “defendant’s [site].” The parties’ agreement effectively removed the decision regarding

forum from the procedural decisions delegated to the arbitrator. The arbitrator could not override the parties’ express

agreement in favor of general procedural rules. Indeed, adherence to the parties’ agreed-upon procedures is regularly

enforced, such as where relevant to the choice of forum of

arbitration, see Bear, Stearns & Co., Inc. v. Bennett, 938 F.2d

31, 32 (2d Cir. 1991); National Iranian Oil Co. v. Ashland

Oil, Inc., 817 F.2d 326, 332 (5th Cir. 1987), or the appointment of arbitrators, see Universal Reinsurance Corp. v. Allstate Insurance Co., 16 F.3d 125, 128 (7th Cir. 1993); Avis

16566 POLIMASTER LTD. v. RAE SYSTEMS, INC.
Rent A Car System, Inc. v. Garage Employees Union, 791

F.2d 22, 24 (2d Cir. 1986).

2.

Second, the policy favoring arbitration “applies with special force in the field of international commerce.” Mitsubishi

Motors, 473 U.S. at 631. The Court has recognized the importance of forum-selection clauses to international trade: “agreeing in advance on a forum acceptable to both parties is an

indispensable element in international trade, commerce, and

contracting,” M/S Bremen, 407 U.S. at 13-14, and that a

choice of forum is “an almost indispensable precondition to

achievement of the orderliness and predictability essential to

any international business transaction,” Scherk, 417 U.S. at

516.

There is no sound basis for imputing a concern for efficiency to the parties in this case. We cannot assume that the

parties’ agreement to arbitrate was motivated by a desire for

efficiency alone, or even that efficiency was a central motivation for their arbitration agreement. Indeed, there are many

reasons why parties might agree to private dispute resolution;

many of these reasons have nothing to do with efficiency.

Non-efficiency justifications for arbitration are especially

important in the realm of international contracting. For example, international arbitration is often preferred as a method to

obtain a neutral decision maker, and to “obviate[ ] the danger

that a dispute under the agreement might be submitted to a

forum hostile to the interests of one of the parties or unfamiliar with the problem area involved.” Scherk, 417 U.S. at 516;

see also Mitsubishi Motors, 473 U.S. at 631; M/S Bremen,

407 U.S. at 13; Born at 5. That appears to have been a critical

concern to the contracting parties here: forum selection

restricted to the defendants’ site. That language makes sense

only by a joint view of the parties that neither will be required

to defend itself except in a proceeding at its home forum.

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16567
[11] In sum, although we recognize that parties often

choose arbitration for sake of efficiency, we cannot impute

such a motivation to the parties here, and we cannot and the

arbitrator cannot rewrite the forum selection clause to suit a

personal view of the virtue of efficiency.

C.

China National is not contrary to our holding in the present

case. 379 F.3d 796. There, the arbitration provision at issue

submitted disputes to arbitration by the China International

Economic and Trade Arbitration Commission (CIETAC),

pursuant to CIETAC arbitration rules, to be conducted in Beijing, Shenzen, or Shanghai, as determined by the claimant.

Apex commenced arbitration proceedings against China

National in Shanghai. A few days later, China National commenced a separate arbitration in Beijing. Apex objected to

China National’s arbitration application because it concerned

the same purchase orders as its own arbitration application.

CIETAC allowed the arbitrations to proceed separately, however. China National obtained a favorable award in the Beijing arbitration, and obtained confirmation of that award. Apex

appealed, arguing that the arbitral procedure did not comply

with the parties’ agreement.

We concluded that the maintenance of multiple arbitrations

was not inconsistent with the arbitration agreement. The

agreement specified three acceptable venues — Beijing,

Shenzen, or Shanghai — and made the selection the claimant’s option. “Nothing in the parties’ purchase orders either

specifically designated Shanghai as the only appropriate arbitral forum or articulated a rule of decision for determining the

appropriate forum.” Id. at 800. Further, the arbitration agreement incorporated CIETAC rules, “[t]hus, CIETAC did not

trump specific terms of the parties’ purchase orders by turning

to its own rules because the arbitral clause did not resolve the

parties’ dispute itself.” Id. at 801.

16568 POLIMASTER LTD. v. RAE SYSTEMS, INC.
[12] China National thus involved an arbitration agreement dissimilar to what we consider here. In China National,

the arbitration provision provided three options for forum to

be selected by the claimant. This provision did not constitute

a mandatory forum selection clause. Here, in contrast, there

is no ambiguity in the agreement: it requires arbitration at the

defendant’s site. Further, the parties in China National

adopted CIETAC rules in their arbitration agreement;

CIETAC did not trump the specific terms of the parties’

agreement. Cf. Cargill Rice, 25 F.3d at 225-26. Here, the parties made no similar choice of applicable procedures. Thus,

the arbitrator’s reference to compulsory counterclaim procedures went outside of the parties’ agreement, and violated the

specific agreement of the parties.

The dissent argues that our holding is inconsistent with

China National. The dissent’s position is, at base, that “[t]he

parties’ disagreement in this case over who is a ‘defendant’ —

a respondent to an initial claim only, or both an initial respondent and a party who responds to counterclaims — matches

the China National debate over the meaning of the contractual

word ‘claimant.’ ” The dissent reasons that “the arbitration

clause here is equally ‘indeterminate’ with respect to the dispositive interpretive question of the precise meaning of

‘defendant.’ ”

In our view, however, the dissent focuses on an inapposite

aspect of China National. Apex argued that CIETAC had disregarded the parties’ arbitration clause by permitting separate,

parallel arbitrations to proceed. Apex, therefore, had to establish that the parties’ arbitration agreement permitted proceedings in only one forum “and not in multiple venues.” 379 F.3d

at 799. As we have described, the agreement in China

National gave the claimant the option to select one of three

fora: Beijing, Shenzen, or Shanghai. Because the arbitration

agreement provided the choice of three fora at claimant’s

option, “[n]othing in the parties’ purchase orders either specifically designated Shanghai as the only appropriate arbitral

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16569
forum or articulated a rule of decision for determining the

appropriate forum. Apex [was] mistaken in its claim that the

arbitration clause was sufficiently specific that CIETAC could

determine the arbitral forum without reference to its arbitral

rules.” Id. at 800. Further, we determined that the use of the

term “claimant” did not limit arbitration proceedings to the

first-chosen forum. Instead, “the clause does not define

‘Claimant’ but leaves it open as a variable term (i.e. either

party could be a claimant).” Id. at 801. Thus, the term “claimant” did not designate the forum of arbitration in light of the

fact that the clause allowed each “claimant” to elect the forum

of arbitration. We stated that the arbitration clause — because

it provided three potential fora for each claimant’s election 

— did not resolve the question of forum.

The dissent focuses on the insufficiency of the term “claimant” to resolve the dispute at issue in China National; but that

term was insufficient to resolve the dispute in light of the context of the arbitration agreement involved. Rather than being

contradictory to our holding, we view China National’s discussion of “claimant” to be consistent with our conclusion. In

China National, as in this case, two parties purported to be

claimants. By extension, in this case, there are two claimants

and two defendants. The arbitration clause at issue required

arbitration at the “defendant’s [site].” In light of the mandatory forum selection clause, there is no ambiguity. This case

is distinct from China National.

D.

[13] We hold that Polimaster has established a defense

under the New York Convention. Under the New York Convention, we may refuse enforcement of an award if it is the

result of procedures that are contrary to the parties’ agreement. Here, the parties agreed to an arbitration clause that

requires disputes to be arbitrated where the defendant is

located; each party should be held to the contractual language

requiring arbitration of disputes in the location of the party

16570 POLIMASTER LTD. v. RAE SYSTEMS, INC.
against whom relief is sought. The procedures used in the

arbitration of “counterclaims” were “not in accordance with

the agreement.” The district court erred in confirming the

arbitration award for RAE.

IV.

On February 25, 2008, the district court issued an order

confirming the arbitration award, but did not issue a judgment. Polimaster’s appeal of that order is discussed in Part III.

On June 5, 2008, RAE filed a motion in our court, asking that,

pursuant to Federal Rules of Civil Procedure 60(a), the district

court be allowed to make corrections to the order. We denied

that motion, but following a request from the district court for

leave to fix “an omission and an error” in the February 25,

2008 Order, and a request from RAE that we reconsider our

earlier denial of the Rule 60(a) motion, we granted RAE’s

motion for reconsideration and “motion for limited remand”

to allow RAE to file a Rule 60(a) motion in district court to

correct the clerical errors identified by the district court. In the

district court, RAE then filed its Rule 60(a) motion; on January 23, 2009, the district court granted the motion and filed

an amended order and a judgment, this time including in its

relief to RAE pre- and post-judgment interest. Polimaster now

appeals from that judgment (case No. 09-15369), arguing that

the judgment’s inclusion of pre- and post-judgment interest

exceeded the scope of our limited mandate.

We need not reach the issue of whether the district court

erred in this respect, because we hold that the district court’s

judgment must be vacated for the reasons set forth in Part III

of this opinion. We therefore remand for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16571
CLIFTON, Circuit Judge, dissenting:

I respectfully dissent. I believe that the majority opinion

has gone astray in two ways.

First, it fails to recognize that the relevant language in the

parties’ arbitration agreement is ambiguous. The arbitrator

and the district judge both concluded that the language is

ambiguous, and I agree with them. The arbitrator also concluded that the language is better interpreted differently than

the majority has read it here, and I tend to agree with the arbitrator’s specific interpretation, as well. The two judges making up the majority insist, nonetheless, that the language can

have but one reasonable interpretation, an interpretation different from that reached by the arbitrator. In light of the contrary views of the neutral arbitrator, the district court, and me,

the majority’s conclusion that the language is unambiguous

flies in the face of a strong headwind, and the reasoning

offered by the majority to support its conclusion is unpersuasive.

Second, as a result of its refusal to recognize the ambiguity

of the contractual language, the majority opinion usurps the

arbitrator’s authority to interpret an ambiguous contractual

term, in conflict with our decision in China National Metal

Products Import/Export Co. v. Apex Digital, Inc., 379 F.3d

796 (9th Cir. 2004).

1. The ambiguity of the relevant language

The problem posed by this case is how, after an arbitration

between the parties has been initiated, to deal with a claim

back by the respondent against the original claimant. In federal court, we call this type of claim a “counterclaim.” See

Fed. R. Civ. P. 13. The parties advocate different solutions to

the problem based upon different interpretations of the arbitration term in the contract: “In case of failure to settle the

16572 POLIMASTER LTD. v. RAE SYSTEMS, INC.
mentioned disputes by means of negotiations they should be

settled by means of arbitration at the defendant’s side [site].”

RAE Systems maintains that the word “defendant” refers to

the initial respondent, the party against which the first claim

is brought, such that any subsequent counterclaim can be

brought in the same arbitration proceeding, even though that

proceeding is not located at the site of the target of the counterclaim. Polimaster, on the other hand, contends that both the

initial respondent and the counter-respondent are “defendant[s]” within the meaning of the contractual term, requiring

the original respondent to initiate and pursue a separate arbitral proceeding at the site of the counter-respondent in order

to pursue a counterclaim.

The majority opinion accepts Polimaster’s multipledefendant, multiple-arbitration interpretation as the right one.

It further decides that this interpretation is so clearly correct

that the arbitration clause is not ambiguous. The majority does

not satisfactorily explain, however, why RAE’s alternative

interpretation is not also a reasonable reading of the arbitration clause. “[A] contract is ambiguous if reasonable people

could find its terms susceptible to more than one interpretation.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir.

2009) (internal quotation marks omitted). The arbitration

clause is susceptible to more than one reasonable interpretation, as the arbitrator and the district court concluded. The

language is ambiguous and should be recognized as such. 

The majority argues that its reading is the only reasonable

one based on the notion that any party who defends against

“any dispute where another party seeks damages or some

other form of relief against him” is necessarily a “defendant.”

Maj. op. at 16559. But none of the sources the majority cites,

at 16562-63, establish as a matter of terminology that the term

“defendant” must be used only as the majority supposes.1 At

1

See, e.g., Rainbow Mgmt. Group, Ltd. v. Atlantis Submarines Haw.,

L.P., 158 F.R.D. 656, 659 (D. Haw. 1994) (holding that “[c]o-parties

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16573
least two of the cited sources actually support the opposite

conclusion: that one might use the term “defendant,” especially with the definite article and without a preceding adjective, to distinguish the original defending party from the party

initially on the offensive. For example, Moore’s Federal Practice, upon which the majority relies, refers to “the defendant”

in precisely this way. See Daniel Coquilette et al., eds.,

Moore’s Federal Practice § 13.90[2] (3d ed. 2010) (especially

the text following n.9 and preceding n.17) (using “the plaintiff” and “the defendant” to designate substantive sides in litigation, in contrast to the term “defending party,” which refers

to either side whenever it defends against an affirmative claim).2

The plaintiff, under this terminology, might later become a

“counterclaim defendant” or a “crossclaim defendant” as well,

but such additional designations, despite including the word

“defendant,” would not transform that party into “the defendant” in the contemplated sense—a shorthand for a particular

side in the litigation.

To the extent that any answer can be gleaned from the language used in the agreement, I think the language cuts slightly

against the majority opinion’s interpretation. Look carefully at

the sentence in question: “In case of failure to settle the mentioned disputes by means of negotiations they should be setbecome opposing parties [emphasis added] within the meaning of Fed. R.

Civ. P. 13(a) after one such party pleads an initial cross-claim against the

other,” with no discussion of whether an “opposing party” must be

deemed a “defendant”); In re Concept Clubs, Inc., 154 B.R. 581, 586 n.4

(distinguishing between a counterclaim and a setoff or recoupment, with

no mention of whether a counterclaim makes the party that opposes it a

“defendant”); Earle M. Jorgenson Co. v. T.I. U.S., Ltd., 133 F.R.D. 472,

475 (E.D. Pa. 1991) (dealing, like In re Concept Clubs, with the “opposing

party” issue, without endorsing any theory of how the term “defendant”

can or must be used). 

2

See also FDIC v. F.S.S.S., 829 F. Supp. 317, 322 n.11 (D. Alaska

1993) (also cited by the majority) (describing a counterclaim brought by

“Defendants[ ]” against “the plaintiff”).

16574 POLIMASTER LTD. v. RAE SYSTEMS, INC.
tled by means of arbitration at the defendant’s side.” The

word “disputes” is plural, but the words “defendant” and

“side” (or “site”) are singular. The parties anticipated that

there could be multiple disagreements, yet “the defendant’s

site” refers to only one location. The arbitration clause does

not say “defendants’ sites.” Of course, I need not be as sure

of this interpretation as the majority must be of its own,

because I do not contend that only this reading is reasonable.

To establish that the language is ambiguous, it is enough to

demonstrate that a reasonable interpretation other than the

majority’s exists, and the language of the arbitration clause is

more than adequate for that purpose.

The reasoning provided by the arbitrator to support his conclusion that the existing arbitration should encompass counterclaims as well was logical. The arbitrator rejected the

interpretation embraced by the majority—that arbitration of a

counterclaim must be conducted in a separate proceeding at

the counter-respondent’s site—because that would represent

an inefficient way to resolve disputes. Parties contractually

adopting arbitration as the method for resolving disputes commonly do so to achieve efficiency. It is logical to reason that

such parties do not intend inefficient results. See Restatement

(Second) of Contracts § 202(1) (1981) (“Words and other

conduct are interpreted in the light of all the circumstances.”);

id. cmt. b (“The circumstances for this purpose include the

entire situation, as it appeared to the parties.”).

In addition, the arbitrator recognized that it is not a novel

or obscure practice to resolve all claims, including counterclaims, in a single proceeding that has already commenced.

The arbitrator here specifically referenced the treatment of

counterclaims in the Federal Rules of Civil Procedure, the

California Rules of Civil Procedure, and the rules of the arbitration forum agreed upon by the parties, JAMS. The prosecution of counterclaims in the same proceeding is broadly

recognized in international arbitration. Prominent international arbitration organizations address counterclaims explicPOLIMASTER LTD. v. RAE SYSTEMS, INC. 16575
itly in their rules. See, e.g., International Chamber of

Commerce Rules of Arbitration art. 5; London Court of International Arbitration Rules art. 2.1(b); German Institute of

Arbitration Rules § 10; United Nations Commission on International Trade Law Arbitration Rules art. 19.

Considering the context in which the parties made their

agreement does not improperly assume any conclusion or

wrongly impute any particular motivation to the parties. It

merely recognizes one good reason the parties may have

intended to agree to something different from the interpretation of the arbitration clause that the majority espouses:

because the majority’s interpretation ignores both the common desire for efficiency and the widespread procedural practice of litigating counterclaims in the same proceeding.3

 Given

this context, it is not so clear to me, let alone unambiguously

clear from the words of the arbitration clause, that the parties

agreed to require piecemeal litigation. The majority opinion

does not persuasively explain why we should conclude that

they did.

The majority opinion’s arguments are, in reality, circular—

the arguments for its preferred reading of the arbitration

clause assume the correctness of that reading. For example,

the majority opinion asserts, at 16562, that “the parties’ clause

was adequate to express their intent . . . to provide for separate arbitrations at the defendant’s site.” I agree that if the parties intended separate arbitrations at the sites of each

defendant or counterclaim defendant, then that is how the

agreement should be interpreted and applied. But the inference that the parties intended the interpretation favored by the

majority rests on nothing other than the majority’s own inter3We need not (indeed, should not, in determining whether a contract is

ambiguous) seek to establish whether the parties subjectively took efficiency concerns or the concept of counterclaims into account. The relevant

point is that the influence of these considerations as background to the

agreement makes an alternate reading of the arbitration clause reasonable.

16576 POLIMASTER LTD. v. RAE SYSTEMS, INC.
pretation of the contractual language. Nothing else is cited by

the majority opinion to support its assertion that the parties

intended that result, nor is any persuasive explanation given

to counter the reasoning of the arbitrator that reached a different conclusion.

Similarly, the majority opinion asserts, at 16562, that this

dissent rests on an “assumption” that counterclaims will be

joined into an existing proceeding, and, at 16562, that the relevant language is clear because there was “no reason to

require the parties to include contractual language specifically

defeating or negating the joinder of claims.” But the parties

obviously recognized the possibility of conflicting claims.

The possibility of combining those claims into a single proceeding was by no means unknown. As noted above, that is

the result suggested by both rules of courts and rules of international arbitration organizations. It is no less an “assumption” to conclude that, in the absence of a contractual

agreement, multiple claims should be litigated piecemeal in

separate arbitrations.

In the end, the reasoning offered by the majority to demonstrate that the agreement unambiguously provided for piecemeal arbitrations rests on nothing more than the majority’s

own assumption that its interpretation of the arbitration clause

is correct. In the face of contrary conclusions by the arbitrator,

the district court, and this dissent, that is much too thin a reed

to support the majority’s conclusion that the relevant language

is unambiguous.

2. The China National decision

Our decision in China National Metal Products

Import/Export Co. v. Apex Digital, Inc., 379 F.3d 796 (9th

Cir. 2004), requires that we respect the arbitrator’s interpretation of an ambiguous contractual provision. Indeed, it also

provides further support for the conclusion that the arbitration

clause here is ambiguous.

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16577
The arbitration clause in China National provided that all

disputes arising from or in connection with the contract would

be submitted to a specified forum, the China International

Economic and Trade Arbitration Commission (“CIETAC”),

for arbitration in Beijing, Shenzhen, or Shanghai, “at the

Claimant’s option.” China National, 379 F.3d at 800. Just as

the parties here argue over who qualifies as “defendant,” the

parties in China National debated who qualified as “claimant”

under their arbitration clause. At stake was the right to determine where arbitration would take place. 

Apex first commenced arbitration against China National in

Shanghai. Days later, China National brought its own claims

against Apex in a separate arbitration in Beijing. Id. at 798-

99. Apex argued that only it, as the party that first initiated

arbitration, was a “claimant,” and that its selection of Shanghai as the arbitral forum required China National to bring its

claims, which arose largely out of the same set of facts, as

counterclaims in the ongoing Shanghai arbitration. Id. at 801.

China National countered that “[i]t too was a rightful claimant

with respect to its claims against Apex” and that it therefore

retained the right, under the arbitration clause, “to pick a

forum for its own claims.” Id. After considering its own rules,

CIETAC decided in favor of China National’s position and let

the claims proceed separately before separate panels. The Beijing panel entered an award in favor of China National and

against Apex. China National brought an action in federal district court to confirm the Beijing panel’s award, the court confirmed the award, and Apex appealed, arguing that only one

proceeding, the Shanghai arbitration, should have taken place.

We rejected the challenge and affirmed the confirmation

order. Id. at 797-98.

We held that “[b]oth positions are arguable, and in the face

of an assertion that there can be two claimants, the text of the

arbitration clause alone is indeterminate and does not resolve

the matter.” Id. at 801. The parties’ disagreement in this case

over who is a “defendant”—a respondent to an initial claim

16578 POLIMASTER LTD. v. RAE SYSTEMS, INC.
only, or both an initial respondent and a party who responds

to counterclaims—matches the China National debate over

the meaning of the contractual term “claimant.” See id.

(describing how the parties argued “claimant” should be interpreted). And the arbitration clause here is equally “indeterminate” with respect to the dispositive interpretive question of

the precise meaning of “defendant.”

Because China National dealt with an analogous contractual ambiguity, it controls our decision here and requires us

to affirm. China National established that an arbitrator does

not impermissibly “trump specific terms of the parties’

[agreement] by turning to its own rules” when, as here, an

“arbitral clause [does] not resolve the parties’ dispute itself.”

4

Id. In our case the arbitrator applied JAMS rules and the Federal and California Rules of Civil Procedure because the parties’ agreement left a dispute about counterclaims unresolved.

The application of extrinsic procedural rules did not contradict the parties’ agreement, but merely supplemented it. The

arbitrator thus did not violate Article V, section 1(d) of the

New York Convention, and the judgment of the district court

confirming the arbitration award should be affirmed.

The majority opinion tries to distinguish China National on

several grounds, but none are persuasive. It points out that

“the parties in China National adopted CIETAC rules in their

arbitration agreement,” so the gap-filling application of those

rules by CIETAC “did not trump the specific terms of the parties’ agreement.” Maj. op. at 16569; see China National, 379

F.3d at 801. But it was the arbitration panel, not our court,

that interpreted CIETAC rules and made the decision as to

where the arbitration could proceed. The majority opinion in

4None of the parties’ contracts defined “defendant’s site” or “defendant’s side.” The controversial term in China National, “claimant,” was

similarly undefined: the arbitration clause “[did] not define ‘Claimant’ but

[left] it open as a variable term (i.e., either party could be a claimant).”

China National, 379 F.3d at 801. 

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16579
this case overrides the arbitrator’s decision. While the parties

in this case did not specify a choice of forum or a choice of

procedural law to address issues their arbitration clause did

not resolve, they subsequently did expressly agree on JAMS

as a forum.

Moreover, while the election of default procedural rules in

China National may have strengthened the argument that

applying those rules did not violate the parties’ agreement, a

choice of law was not necessary to China National’s result.

“CIETAC did not trump specific terms of the parties’ purchase orders by turning to its own rules because the arbitral

clause did not resolve the parties’ dispute itself,” 379 F.3d at

801 (emphasis added), not because the CIETAC rules used to

fill a gap in the arbitration clause were incorporated by reference into the contract. Rules entirely extrinsic to an agreement, such as the JAMS rules and Federal and California

Rules of Civil Procedure applied in this case, do not automatically conflict with that agreement. China National makes

clear that it is the presence of a gap in an arbitration clause,

not the specification of default rules for filling such a gap, that

makes an arbitrator’s reference to extrinsic rules appropriate.

A gap—that is, a dispute between the parties that “the text of

the arbitration clause alone” does not resolve—exists as much

in this case as it did in China National. Reference to outside

procedural rules was appropriate here, even though the rules

employed were not specified in advance by the parties.

The majority opinion also attempts to differentiate this case

from China National by highlighting the fact that the arbitration clause at issue here, once properly interpreted, mandates

a particular forum (“the defendant’s side”), while the clause

in China National gave one party a choice among three Chinese cities. Maj. op. at 16569. That distinction is beside the

point. The parties debated the meaning of “claimant” in China

National because its definition determined which party got to

choose among Beijing, Shenzhen, and Shanghai. The winner

of the interpretive debate received the right to select a city

16580 POLIMASTER LTD. v. RAE SYSTEMS, INC.
instead of, as in this case, a predetermined forum that the victorious party would prefer. But that detail does not disturb the

parallel contractual analysis that underlies the two cases. Both

cases are fundamentally about how contractual terms, “claimant” and “defendant,” respectively, should be interpreted

when the contracts themselves do not resolve the parties’ disputes.

Because I conclude that the judgment on the merits should

be affirmed, I would reach the issue of whether the district

court exceeded the scope of our earlier limited remand to correct its failure to enter a judgment. I would affirm the district

court’s belatedly entered judgment. Because the court’s oversight was its failure to enter any judgment at all, it was

empowered to correct its mistake by entering a judgment that

included any relief, including pre- and post-judgment interest,

that could have been included in the judgment in the first

instance. A court is allowed, under Federal Rule of Civil Procedure 60(a), to make corrections to effectuate what it “originally intended to do.” Robi v. Five Platters, Inc., 918 F.2d

1439, 1445 (9th Cir. 1990).

I would affirm.

POLIMASTER LTD. v. RAE SYSTEMS, INC. 16581