IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30984

STEMCOR USA INCORPORATED,

 Plaintiff

v. 

CIA SIDERURGICA DO PARA COSIPAR, ET AL.,

 Defendants

----------------------------------------------

DAEWOO INTERNATIONAL CORPORATION,

 Plaintiff - Appellant

v.

THYSSENKRUPP MANNEX GMBH,

 Intervenor Plaintiff - Appellee

v.

AMERICA METALS TRADING L.L.P., ET AL.,

 Defendants

Appeal from the United States District Court

for the Eastern District of Louisiana

United States Court of Appeals

Fifth Circuit

FILED

June 25, 2019

Lyle W. Cayce

Clerk

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ON PETITION FOR REHEARING

Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

On second rehearing of this matter, we certified to the Louisiana 

Supreme Court the question of whether a suit seeking to compel arbitration is 

an “action for a money judgment” under Louisiana’s non-resident attachment 

statute, La. Code Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica 

do Para Cosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme 

Court having now provided its answer, we conclude that Louisiana’s nonresident attachment statute allows for attachment in aid of arbitration. Thus, 

we grant rehearing, withdraw our prior opinion, 895 F.3d 375 (5th Cir. 2018), 

and substitute the following. We also VACATE the judgment of the district 

court and REMAND.

I

This is a dispute between two creditors, each of which attached the same 

pig iron owned by America Metals Trading L.L.P. (“AMT”). Plaintiff–Appellant 

Daewoo International Corp. (“Daewoo”) is a South Korean trading company. 

In May 2012, Daewoo entered into a series of contracts with AMT for the 

purchase of pig iron, to be delivered in New Orleans. The sale contracts 

contained arbitration clauses. Although Daewoo made payments under the 

contracts, AMT never shipped the pig iron. Thyssenkrupp Mannex GMBH 

(“TKM”) is a German company. Between June 2010 and February 2011, TKM 

entered into six contracts to purchase pig iron from AMT. AMT never 

delivered. In response to the breach of contract, TKM and AMT negotiated a 

settlement, which required AMT to make quarterly payments to TKM. AMT 

did not pay. 

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Daewoo sued AMT in the Eastern District of Louisiana, seeking an order 

compelling arbitration and an attachment of the pig iron on board a ship thenanchored in New Orleans. Daewoo invoked both maritime attachment and the 

Louisiana non-resident attachment statute, which allows attachments in aid 

of any “action for a money judgment.” La. Code Civ. Proc. art. 3542. Citing 

both types of attachment, the district court granted Daewoo its attachment. 

Intervenor-Appellee TKM later attached the same pig iron in Louisiana state 

court and intervened in Daewoo’s federal action arguing that maritime 

jurisdiction was improper and Louisiana’s non-resident attachment statute 

was inapplicable.

The district court agreed with TKM and vacated Daewoo’s attachment. 

See Stemcor USA, Inc. v. Am. Metals Trading, LLP, 199 F. Supp. 3d 1102 (E.D. 

La. 2016). Specifically, the district court found that because Daewoo’s 

underlying suit sought to compel arbitration, it was not an “action for a money 

judgment.” Thus, the district court found that Daewoo could not receive a nonresident attachment writ. After Daewoo’s writ was dissolved, TKM’s state 

court attachment became first in time and the district court transferred 

proceeds from the parties’ agreed sale of the pig iron to state court. Daewoo 

appealed the district court’s conclusion that its Louisiana non-resident 

attachment writ was invalid. This court heard oral arguments, rendered a 

decision and reconsidered this matter on rehearing. See Stemcor USA Inc. v. 

Cia Siderurgica do Para Cosipar, 870 F.3d 370 (5th Cir. 2017), opinion 

withdrawn and superseded on reh’g, 895 F.3d 375 (5th Cir. 2018).

On second rehearing of this matter, we certified to the Louisiana 

Supreme Court the question of whether a suit seeking to compel arbitration is 

an “action for a money judgment” under Louisiana’s non-resident attachment 

statute, La. Code Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica 

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do Para Cosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme 

Court has now answered. See Stemcor USA Inc. v. Cia Siderurgica do Para 

Cosipar, --- So.3d ----, 2018-CQ-1728, 2019 WL 2041826, (La. May 8, 2019). 

II

The district court found federal subject matter jurisdiction under the 

Convention on the Recognition and Enforcement of Foreign Arbitral Awards 

(the “Convention”). We agree. 

For a federal court to have jurisdiction under the Convention, two 

requirements must be met: (1) there must be an arbitration agreement or 

award that falls under the Convention, and (2) the dispute must relate to that 

arbitration agreement. These requirements flow from the text of two sections 

of the Convention. The explicit jurisdictional provision is Section 203, which 

gives federal courts jurisdiction over all “action[s] or proceeding[s] falling 

under the Convention.” 9 U.S.C. § 203. “An arbitration agreement or arbitral 

award arising out of a legal relationship, whether contractual or not, which is 

considered as commercial, including a transaction, contract, or agreement 

described in section 2 of this title, falls under the Convention.” 9 U.S.C. § 202. 

Accordingly, the first step for determining jurisdiction is deciding whether the 

“arbitration agreement or award . . . falls under the Convention.” Id. 

The next step, derived from Section 203, is to ask whether the “action or 

proceeding”—as opposed to the arbitration agreement or award—falls under 

the Convention. The Convention’s removal statute offers guidance on what 

“falling under” means because “[g]enerally, the removal jurisdiction of the 

federal district courts extends to cases over which they have original 

jurisdiction.” Francisco v. Stolt Achievement MT, 293 F.3d 270, 272 (5th Cir. 

2002). Section 205 of the Convention allows for removal whenever “the subject 

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matter of an action or proceeding pending in a State court relates to an 

arbitration agreement or award falling under the Convention.” 9 U.S.C. § 205. 

We have read “relates to” to mean “has some connection, has some relation, 

[or] has some reference” to. Acosta v. Master Maint. & Constr. Inc., 452 F.3d 

373, 378–79 (5th Cir. 2006). And reading “falling under” to mean “relates to” 

makes sense grammatically. “Fall” means “to come within the limits, scope, or 

jurisdiction of something.” Merriam-Webster’s Collegiate Dictionary 418 (10th 

ed. 2002). Accordingly, the second step of the jurisdictional question is asking 

whether the “action or proceeding” “relates to” a covered arbitration agreement 

or award. See Fred Parks, Inc. v. Total Compagnie, 981 F.2d 1255, 1992 WL 

386999, at *1–2 (5th Cir. 1992) (unpublished) (treating the question of original 

and removal jurisdiction under the Convention as identical).

This two-step jurisdictional inquiry is consistent with case law 

interpreting the Convention. See, e.g., BP Expl. Libya Ltd. v. ExxonMobil 

Libya Ltd., 689 F.3d 481, 487 & n.4 (5th Cir. 2012) (finding jurisdiction where 

there was a covered arbitration agreement and the suit sought appointment of 

arbitrators); Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 826 (2d Cir. 

1990) (holding that jurisdiction over preliminary injunction in aid of covered 

arbitration was proper because the remedy sought did not try to “bypass 

arbitration”); Sunkyong Eng’g & Const. Co. v. Born, Inc., 149 F.3d 1174, 1998 

WL 413537, at *5 (5th Cir. 1998) (unpublished) (“The FAA grants the United 

States district courts original federal question jurisdiction over arbitral awards 

and agreements to arbitrate that fall within the Convention.”); Venconsul N.V. 

v. Tim Int’l. N.V., 03Civ.5387(LTS)(MHD), 2003 WL 21804833, at *3 (S.D.N.Y. 

Aug. 6, 2003) (“Borden has been interpreted as recognizing a court’s power to 

entertain requests for provisional remedies in aid of arbitration even where 

the request for remedies does not accompany a motion to compel arbitration or 

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to confirm an award.”). 

Both jurisdictional requirements are met here. First, Daewoo’s 

arbitration agreements with AMT are covered by the Convention. For an 

arbitration agreement to be covered by the Convention, four requirements 

must be met: (1) there must be an agreement in writing to arbitrate the 

dispute; (2) the agreement must provide for arbitration in the territory of a 

Convention signatory; (3) the agreement to arbitrate must arise out of a 

commercial legal relationship; and (4) at least one party to the agreement must 

not be an American citizen. See Freudensprung v. Offshore Tech. Servs., Inc., 

379 F.3d 327, 339 (5th Cir. 2004); Sunkyong, 149 F.3d 1174, 1998 WL 413537, 

at *5; Sedco, Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co. (Pemex), 767 

F.2d 1140, 1144–45 (5th Cir. 1985). All four requirements are met here:

• There is an agreement in writing to arbitrate Daewoo and AMT’s 

dispute.

• That agreement provides for arbitration in New York, and the United 

States is a signatory to the Convention.

• The agreement arises out of a commercial relationship between Daewoo 

and AMT.

• Both Daewoo and AMT are not American citizens.

Second, this suit is related to the AMT arbitration agreements because 

Daewoo seeks an attachment to facilitate the arbitration provided for in the 

AMT agreements. See Borden, 919 F.2d at 826 (“[T]he desire for speedy 

decisions in arbitration is entirely consistent with a desire to make as effective 

as possible recovery upon awards, after they have been made, which is what 

provisional remedies do.” (internal quotation marks and citation omitted)). 

Our decision in E.A.S.T., Inc. of Stamford v. M/V Alaia, 876 F.2d 1168 (5th 

Cir. 1989), strongly counsels towards recognizing subject matter jurisdiction 

based on the Convention to issue provisional remedies in aid of arbitration. 

The court in E.A.S.T., albeit in the context of a maritime attachment, found 

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that the “the arrest of a vessel prior to arbitration is not inconsistent with the 

Convention.” Id. at 1173. And the court noted that the Convention “does not 

expressly forbid pre-arbitration attachment” and that pre-arbitration 

attachment “may ‘serve[] . . . as a security device in aid of arbitration.’” Id.

(alteration in original) (quoting Atlas Chartering Servs., Inc. v. World Trade 

Grp., Inc., 453 F. Supp. 861, 863 (S.D.N.Y. 1978)). 

Indeed, E.A.S.T.’s reasoning mirrors the reasoning of courts that have 

found subject matter jurisdiction under the Convention to order state-law 

provisional remedies. Like the court in E.A.S.T., those courts reason that 

“nothing in the Convention divests federal courts of jurisdiction to issue 

provisional remedies . . . such as an attachment, when appropriate in 

international arbitrations.” Bahrain Telecomms. Co. v. Discoverytel, Inc., 476 

F. Supp. 2d 176, 181 (D. Conn. 2007); see also China Nat’l Metal Prods. 

Imp./Exp. Co. v. Apex Dig., Inc., 155 F. Supp. 2d 1174, 1180 (C.D. Cal. 2001) 

(“Rather than conflicting with the parties’ agreement to arbitrate, provisional 

remedies such as attachment reinforce arbitration agreements by ensuring 

that assets from which an arbitration award would be satisfied are secured 

while arbitration is pending.”). E.A.S.T. therefore strongly suggests that this 

court recognizes jurisdiction under the Convention to issue state-law 

preliminary remedies in aid of arbitration.1

 

1 And there are compelling reasons against reading jurisdiction under Section 203 as 

narrowly limited to the three remedies expressly allowed by the Convention (compelling 

arbitration and appointing arbitrators in Section 206 and confirming awards in Section 207). 

Namely,

[n]othing in § 206 or § 207 limits the subject matter jurisdiction 

of federal courts. These sections merely identify the remedies 

that federal courts may grant, and do not speak in jurisdictional 

terms or refer in any way to the jurisdiction of the district courts. 

. . . To grant the remedies provided in those sections, the Court 

must first determine that it has jurisdiction . . . .

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Applying E.A.S.T. and the cases that follow it, the Convention grants 

jurisdiction over Daewoo’s request for an attachment. Like the plaintiff in 

E.A.S.T., Daewoo sought to attach the pig iron in order to facilitate arbitration 

and increase its chance of recovering on any award. Because Daewoo sought 

attachment to bring about a covered arbitration—that is, because Daewoo’s 

suit related to a covered arbitration agreement—this court has subject matter 

jurisdiction.2

III

The parties dispute whether Louisiana’s non-resident attachment 

statute allows for attachment in aid of arbitration. The district court held that 

it does not. 

As stated previously, we certified to the Louisiana Supreme Court the 

question of whether a suit seeking to compel arbitration is an “action for a 

money judgment” under Louisiana’s non-resident attachment statute, La. 

 

Treating §§ 206 and 207 as jurisdictional provisions confuses the 

subject matter jurisdiction of federal courts with their remedial 

authority. Although jurisdiction is a word of many . . . meanings, 

there is a difference between the two. The nature of the relief 

available after jurisdiction attaches is, of course, different from 

the question whether there is jurisdiction to adjudicate the 

controversy . . . . The breadth or narrowness of the relief which 

may be granted under federal law . . . is a distinct question from 

whether the court has jurisdiction over the parties and the 

subject matter. Any error in granting or designing relief does 

not go to the jurisdiction of the court. 

CRT Capital Grp. v. SLS Capital, S.A., 63 F. Supp. 3d 367, 374–75 (S.D.N.Y. 2014) (internal 

quotations marks, citations, and alterations omitted). Simply put, the question of what

remedies are available in a Convention suit is distinct from the question of jurisdiction.

2 We asked the parties to brief whether this court has personal jurisdiction under 

quasi in rem principles. We are satisfied that we have personal jurisdiction. See Republic 

Nat’l Bank of Miami v. United States, 506 U.S. 80, 88–89 (1992); Nassau Realty Co., Inc. v. 

Brown, 332 So. 2d 206, 210 (La. 1976).

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Code Civ. Proc. art. 3542. See Stemcor USA Inc. v. Cia Siderurgica do Para 

Cosipar, 740 F. App’x 70 (5th Cir. 2018). The Louisiana Supreme Court 

accepted the certified question and answered: “Louisiana Code of Civil 

Procedure article 3542 allows for attachment in aid of arbitration if the origin 

of the underlying arbitration claim is one pursuing money damages and the 

arbitral party has satisfied the statutory requirements necessary to obtain a 

writ of attachment.” See Stemcor USA Inc. v. Cia Siderurgica do Para Cosipar, 

--- So.3d ----, 2018-CQ-1728, 2019 WL 2041826, *1 (La. May 8, 2019).

Louisiana’s attachment statute provides that “[a] writ of attachment 

may be obtained in any action for a money judgment, whether against a 

resident or a nonresident, regardless of the nature, character, or origin of the 

claim, whether it is for a certain or uncertain amount, and whether it is 

liquidated or unliquidated.” La. Code Civ. Proc. art. 3542. The underlying 

action seeking to compel arbitration here is clearly an “action for a money 

judgment” under Louisiana’s non-resident attachment statute. See La. Code 

Civ. Proc. art. 3542. Daewoo has made it clear from the outset that it would 

be pursuing a money judgment. The “nature, character, or origin of the claim” 

just happens to be arbitration. La. Code Civ. Proc. art. 3542. Thus, we 

conclude that the district court erred in finding that the Louisiana nonresident attachment statute was not available to Daewoo. 

IV

For the above reasons, we VACATE and REMAND.

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