UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marks 3-Zet-Ernst Marks GmbH & Co.KG

v. Civil No. 05-cv-121-JD

Opinion No. 2005 DNH 118

Presstek, Inc.

O R D E R

Marks 3-Zet-Ernst Marks GmbH & Co.KG filed a petition to

compel Presstek, Inc., to arbitrate their dispute under the terms

of their agreement, the New York Convention, and the Federal

Arbitration Act (“FAA”). Presstek moves to dismiss the petition,

pursuant to Federal Rule of Civil Procedure 12(b)(1), contending

that the court lacks subject matter jurisdiction over the case

based on Marks’s previous attempt to arbitrate before the

Permanent Court of Arbitration (“PCA”) at The Hague. Marks

objects to the motion.

Standard of Review

“Under [Rule] 12(b)(1), a party may contest the court’s

subject matter jurisdiction by challenging the allegations in the

complaint as insufficient on their face or by questioning the

accuracy of those allegations.” Hernandez-Santiago v. Ecolab,

Inc., 397 F.3d 30 33 (1st Cir. 2005). When the defendant

challenges the sufficiency of the plaintiff’s factual

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allegations, the court accepts “the plaintiff’s version of the

relevant events, taking the well-pleaded facts as true and

drawing all reasonable inferences in favor of the pleader.” 

Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001). 

If the accuracy of the plaintiff’s facts is challenged, however,

the court may consider supplemental materials extrinsic to the

complaint and engage in preliminary fact finding. Skwira v.

United States, 344 F.3d 64, 71-72 (1st Cir. 2003); Gonzalez v.

United States, 284 F.3d 281, 288 (1st Cir. 2002).

Background

Marks alleges it entered an agreement with Presstek in

November of 2000 for selling and distributing Presstek products

and that Presstek attempted to terminate the agreement

prematurely, in 2002. After the parties were unable to resolve

their dispute, Marks terminated the agreement. Marks issued

notices of arbitration of the dispute in November of 2002 and

March of 2003.

When Presstek failed to respond to the second notice of

arbitration, Marks contacted the Permanent Court of Arbitration

(“PCA”) in The Hague to begin arbitration proceedings there. 

Marks alleges that “[t]he President of the PCA subsequently

concluded that the application of the Uncitral Rules to the

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Agreement was not appropriate and gave no further opinion with

respect to the Agreement.” Petition ¶ 14. Marks states that it

then issued a third notice of arbitration to Presstek in March of

2004 requesting arbitration under the Netherlands Arbitration Act

and that Presstek failed to respond.

Marks filed this petition pursuant to the Convention on the

recognition and Enforcement of Foreign Arbitral Awards (“New York

Convention”), reprinted at 9 U.S.C. § 201, and the FAA. It seeks

to compel arbitration of its dispute with Presstek under a

provision titled “Applicable Law and Jurisdiction” that provides:

“Any dispute or difference between the Parties arising out of or

relating to this Agreement which cannot be settled amicably shall

be referred to and determined by arbitration in the Hague under

the International Arbitration rules.” Marks alleges that the

circumstances satisfy the requirements for arbitration under the

New York Convention and asks that Presstek be ordered to

arbitrate the dispute at The Hague under “the American

Arbitration Act’s International Rules.” Pet. ¶ A.

In its motion to dismiss, Presstek contests Marks’s version

of the proceedings before the PCA in The Hague. Presstek submits

copies of the letters that constitute part of the record of that

proceeding. The letters show that Marks requested the PCA to

designate an appointing authority to address its requested

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arbitration proceeding. The PCA responded to the request in a

letter dated August 4, 2003, by explaining that “[t]he SecretaryGeneral of the PCA routinely designates Appointing Authorities

and acts as Appointing Authority under the UNCITRAL Arbitration

Rules, and under other procedural rules and treaty mechanisms. 

Prior to acting in such matters, the Secretary-General first

satisfies himself, on the basis of a prima facie screening of the

documentation submitted by the parties, that he is competent to

act.” The letter then directed Presstek as the respondent to

“provide its comments with respect to Claimant’s request.”

Presstek, through counsel, first responded that the

arbitration provision in the parties’ agreement was too vague to

support the jurisdiction of the PCA to arbitrate the dispute

because that provision referred to “International Arbitration

rules” rather than the UNCITRAL Arbitration Rules. Counsel for

Presstek then provided a legal memorandum to support Presstek’s

view that the arbitration provision was ambiguous, preventing the

PCA from exercising its jurisdiction over the arbitration

proceeding. On October 21, 2003, a letter notified the parties

that the Secretary-General could designate an Appointing

Authority under the UNCITRAL Arbitration Rules only if the

parties had agreed to arbitration under those rules and that he

was “not satisfied, on the basis of a prima facie screening of

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the documentation submitted by the parties, that he is competent

to act in this matter. The parties remain free to seek the

interpretation of their arbitration agreement from any court

having jurisdiction.”

Discussion

Presstek contends that the October 21, 2003, letter from the

PCA was an “award” within the meaning of the New York Convention

and that this court lacks jurisdiction to vacate, modify, or

suspend that award by providing the relief that Marks seeks here.

Alternatively, Presstek argues that if the PCA failed to make a

final award by refusing to proceed, then the relief Marks seeks

is time barred under 9 U.S.C. §§ 10 and 12. Marks responds that

no award was made by the PCA so that its action here is not

barred by the prior proceedings.

“The New York Convention provides a carefully structured

framework for the review and enforcement of international

arbitral awards.” Karaha Bodas Co. v. Perusahaan Pertambangan

Minyak Dan Gas Bumi Negara, 364 F.3d 274, 287 (7th Cir. 2004). 

Except in unusual circumstances, review of arbitral awards must

be sought in the country where the award was made. Karaha Bodas

Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335

F.3d 357, 364 (5th Cir. 2003). Some issues, however, are not

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addressed in the New York Convention, and the Convention is

implemented and interpreted through the FAA to the extent its

provisions are not inconsistent with the Convention. See 9

U.S.C. § 203. 

Presstek acknowledges that the New York Convention does not

define the term “award.” See, e.g., Publicis Commc’n v. True

North Commc’ns Inc., 206 F.3d 725, 728-29 (7th Cir. 2000)

(discussing nature of “award” under Convention and FAA). 

Presstek argues that the term includes the circumstance when “the

arbitrators exceeded their powers or so imperfectly executed them

that a mutual, final and definite award upon the subject matter

submitted was not made.” 9 U.S.C. § 10(a)(4). Based on that

definition of award, Presstek insists that the PCA’s letter of

October 21, 2003, was an “award” that cannot be reviewed or

modified here. Marks counters that in this case no arbitrators

ever considered the dispute so that they neither made an award

nor failed to make an award. Instead, Marks contends, only a

preliminary decision was made that the PCA lacked jurisdiction.

Marks is correct that based on the record presented here no

arbitrators were ever appointed to consider the parties’ dispute. 

As a result, the jurisdictional question was not decided by

arbitrators. The October 21, 2003, letter explaining that the

PCA lacked jurisdiction to act in the matter was not an “award”

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within the meaning of either the New York Convention or the FAA. 

Therefore, the jurisdictional issues Presstek raises, which

depend upon the existence of a previous “award,” are without

merit. Nevertheless, the October 21, 2003, letter demonstrates

that the PCA has determined that it lacks jurisdiction to

consider this matter. It would appear that Marks’s petition

seeking an order compelling arbitration before the PCA is moot,

based on that prior determination.

Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

(document no. 8) is denied. The plaintiff shall file a

memorandum not to exceed fifteen pages on or before September 1,

2005, to show cause why this action should not be dismissed as

moot. The defendant shall have ten days from the date the

memorandum is filed to file its response.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

August 9, 2005

cc: Kevin M. Fitzgerald, Esquire

John E. Friberg, Jr., Esquire

James D. Rosenberg, Esquire

Arpiar G. Saunders, Jr., Esquire

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