Jiangsu Beier Decoration Materials Co., Ltd. v. ANGLE WORLD LLC On Appeal from the United States District Court for the Eastern…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-3143
JIANGSU BEIER DECORATION MATERIALS CO., LTD.,
Appellant
v.
ANGLE WORLD LLC
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 2-21-cv-02845)
U.S. District Judge: Honorable Anita B. Brody
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
On September 21, 2022
Before: AMBRO, RESTREPO, and FUENTES, Circuit
Judges
(Filed: November 3, 2022)
_______________

-- 1 of 21 --

2
Richard A. Kaye
Barnes & Thornburg, LLP
3475 Piedmont Road, N.E., Suite 1700
Atlanta, Georgia 30305
William J. Burton
Barnes & Thornburg, LLP
1000 N. West Street, Suite 1500
Wilmington, DE 19801
Counsel for Appellant Jiangsu Beier Decoration
Materials Co., Ltd.
Stephen M. Packman
Archer & Greiner, P.C.
Three Logan Square
1717 Arch Street, Suite 3500
Philadelphia, PA 19103
Brian M. Gargano
Jiangang Ou
Archer & Greiner, P.C.
3040 Post Oak Blvd, Suite 1800
Houston, TX 77056
Counsel for Appellee Angle World LLC
_______________
OPINION OF THE COURT
_______________
FUENTES, Circuit Judge.

-- 2 of 21 --

3
Appellant Jiangsu Beier Decoration Materials Co., Ltd.
(“Jiangsu”), a China-based manufacturer, obtained an
arbitration award in China against Appellee Angle World LLC
(“Angle World”), a Pennsylvania-based distributor. Jiangsu
seeks to enforce its foreign arbitration award in the United
States, but Angle World claims that it never agreed to arbitrate.
This case requires us to examine the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the
“New York Convention”), an international treaty that permits
the recipient of a foreign award to petition a United States
district court for confirmation.1
The District Court dismissed Jiangsu’s confirmation
petition after determining that Jiangsu failed to prove that
Angle World agreed to arbitrate the parties’ underlying
dispute. For the reasons set forth herein, we will vacate the
District Court’s order of dismissal and remand this case for
further proceedings. We take no position on the ultimate
question of arbitrability.
1 June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997. The New
York Convention was initially adopted in 1958 “to encourage
the recognition and enforcement of commercial arbitration
agreements in international contracts and to unify the standards
by which agreements to arbitrate are observed and arbitral
awards are enforced in the signatory countries.” China
Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp., 334
F.3d 274, 282 (3d Cir. 2003) (“China Minmetals”) (quoting
Sherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974)).
The United States and China are signatories to the New York
Convention. N.Y. Convention, art. XVI.

-- 3 of 21 --

4
I. Factual Background
A. The Underlying Dispute
Jiangsu is a manufacturer of flooring products based in
China. Angle World is a distributor based in Pennsylvania. In
2016, Jiangsu and Angle World agreed that Angle World
would serve as Jiangsu’s exclusive distribution agent in the
United States. Jiangsu claims that, as of June 2018, Angle
World owed it over $1.3 million under the distribution
agreement. Angle World disputed Jiangsu’s claim, and the
parties attempted to negotiate a settlement.
On June 28, 2018, the parties agreed to a written and
signed memorandum of understanding, under which Angle
World agreed to pay Jiangsu $528,227.59 within six months
(the “June MOU”).2 The June MOU did not contain an
arbitration clause. On July 10, 2018, a representative from
Jiangsu sent Angle World a revised agreement via email (the
“July MOU”). Unlike its predecessor, the July MOU included
an arbitration clause, providing as follows:
Any dispute arising from this Memorandum of
Understanding shall be settled by and between
the two Parties through friendly negotiation. If
the dispute cannot be settled through negotiation,
the two Parties shall submit the dispute to the
China International Economic and Trade
Arbitration Commission Shanghai Sub-
2 The parties acknowledge that they both signed the June
MOU.

-- 4 of 21 --

5
Commission for arbitration according to the
arbitration rules of the Sub-Commission. The
place of arbitration shall be Shanghai. The
arbitration ruling shall be final and binding on
the two Parties, and the losing Party shall
compensate the winning Party for the arbitration
cost and attorney’s fee.3
After Jiangsu sent a draft of the July MOU to Angle
World, the parties allegedly met in person in China to continue
negotiations. On July 19, 2018, Jiangsu emailed Angle World
an amended version of the July MOU with a revised payment
schedule. Angle World’s president, Biao Wang (“Wang”),
responded with the following email:
It has not been written in accordance with our
negotiation.
It has exceeded the scope of my capacity in terms
of negotiating with both parties.
Following the legal procedure, once Jason4 has
provided a final response, we will not make
further changes or accept any amendment
suggestions.5
3 SAppx91–92.
4 “Jason” appears to be Angle World’s Chief Operating
Officer, Jason Pyon.
5 SAppx240. Angle World has moved to supplement the
appellate record with an affidavit by Wang that, due to a
technical filing issue, was not available to the District Court at

-- 5 of 21 --

6
What happened next is not entirely clear. A Jiangsu
representative initially attested that the parties held another in-
person meeting, that Wang signed a copy of the July MOU, and
that Jiangsu then sent a copy of the signed agreement to Angle
World via courier service. However, Jiangsu has since
conceded before the District Court and on appeal that Angle
World never signed the July MOU. The parties exchanged
emails on July 26 and 27, 2018 indicating that they had agreed
to a payment schedule. Yet, these emails do not reference the
July MOU or any other prior agreement. In subsequent emails
between the parties in August and September 2018, Jiangsu
repeatedly asked Angle World to forward the “signed
agreement.” Angle World never acknowledged these requests.
Angle World states that from July to September 2018, it
understood that the June MOU remained in effect, as modified
by the later agreed-upon payment schedule. Nonetheless,
Angle World ultimately made only two of the six scheduled
payments to Jiangsu.6
the time of its decision. Dkt. 22. As we find that inclusion of
Wang’s affidavit would not affect our disposition of this
appeal, Angle World’s motion to supplement is denied as
moot. Angle World may present Wang’s affidavit to the
District Court upon remand in accordance with this Court’s
instructions below.
6 Angle World claims that it ceased payments upon discovering
that Jiangsu had breached the distribution agreement between
the parties.

-- 6 of 21 --

7
B. The Chinese Arbitration
In May 2019, Jiangsu initiated arbitration against Angle
World before the China International Economic and Trade
Arbitration Commission (“CIETAC”). Angle World objected
to CIETAC’s jurisdiction over the dispute, and the matter was
referred to the Beijing Fourth Intermediate People’s Court (the
“Chinese Court”) to determine arbitrability. The Chinese
Court found that the July MOU, and the arbitration clause
contained therein, were enforceable under Chinese law
because, among other things, “the parties entered into or
modified the contracts by email during the course of long-term
business,” and “the [July MOU] was an adjustment and
supplement to the [June MOU].”7
The CIETAC arbitration panel adopted the Chinese
Court’s decision and also independently determined that the
July MOU was enforceable under both the United Nations
Convention on the International Sale of Goods (“CISG”)8 and
Chinese law. On March 11, 2021, the panel ruled in favor of
Jiangsu on the merits of the dispute, finding that Angle World
had breached the July MOU by failing to make all payments
required thereunder. The panel ordered Angle World to pay
$624,227.59 for the breach, plus attorney fees (the “Foreign
Award”).9
7 SAppx157.
8 Apr. 10, 1980, S. Treaty Doc. No. 98-9 (1983), 19 I.LM. 668
(1980).
9 One member of the arbitration panel dissented from the award
after concluding that the parties had never agreed to the July
MOU or its arbitration provision.

-- 7 of 21 --

8
II. Procedural History
Jiangsu filed the petition before us in the United States
District Court for the Eastern District of Pennsylvania on June
25, 2021, seeking confirmation of the Foreign Award pursuant
to the New York Convention (the “Petition”). The Petition
alleged that “[o]n or about July 10, 2018, after various drafts
and negotiations,” Angle World and Jiangsu agreed to an MOU
in which they “agreed to settlement of trade transaction
disputes between them.”10 The Petition attached copies of the
Foreign Award and the unsigned July MOU. It did not
reference any of the emails exchanged between the parties
from July to September 2018.
Angle World then moved to dismiss the Petition under
Federal Rule of Civil Procedure 12(b)(6). Angle World argued
that Jiangsu did not demonstrate the existence of an arbitration
agreement enforceable under the New York Convention and
that, consequently, the District Court could not enforce the
Foreign Award. Jiangsu argued in opposition, among other
things, that the District Court should defer to the Chinese
Court’s finding of arbitrability and that the parties’ email
correspondence created an enforceable arbitration agreement.
The parties submitted several exhibits in connection with their
briefing on the motion to dismiss, including the July-
September 2018 email exchanges discussing the MOUs and
payment schedules.
The District Court granted Angle World’s motion and
dismissed the Petition. In an opinion dated October 28, 2021,
10 SAppx2.

-- 8 of 21 --

9
the Court found that Jiangsu failed to produce an arbitration
agreement enforceable under the New York Convention
because Angle World never signed the July MOU and Jiangsu
did not otherwise prove Angle World’s agreement to arbitrate.
The Court further held that it was not bound by the prior rulings
of the Chinese Court or CIETAC because (1) neither Chinese
tribunal determined whether the July MOU was enforceable
under the New York Convention; and (2) under Third Circuit
law, the Court had an independent duty to assess whether there
was an enforceable agreement to arbitrate before confirming
the Foreign Award. Jiangsu timely appealed.
III. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. §
1331 and 9 U.S.C § 203. This Court has jurisdiction under 28
U.S.C. § 1291. On review of a petition to confirm an
arbitration award, this Court reviews a district court’s factual
findings for clear error and its legal conclusions de novo.11 We
review de novo a district court’s interpretation of the New York
Convention.12
11 China Minmetals, 334 F.3d at 278 (citing First Options of
Chi., Inc. v. Kaplan, 514 U.S. 938, 947–48 (1995)).
12 Admart AG v. Stephen and Mary Birch Found., 457 F.3d
302, 307 (3d Cir. 2006).

-- 9 of 21 --

10
IV. Discussion
The New York Convention, as implemented by Chapter
2 of the Federal Arbitration Act (“FAA”),13 permits the
recipient of a foreign arbitration award to petition a district
court to enforce it.14 Before confirming a foreign award,
however, a district court must independently assure itself that
the parties consented to arbitrate the merits of their underlying
dispute.15 The District Court performed this inquiry and found
consent lacking with respect to the July MOU—the only
document in the record containing an arbitration provision.
Jiangsu argues on appeal that the District Court erred in
reaching this conclusion for two reasons. First, it argues that
even though Angle World never signed the July MOU, the
record before the District Court—specifically, an email
exchange between the parties—shows that Angle World
nonetheless consented to arbitrate. Second, Jiangsu contends
that the District Court should have deferred to the conclusions
of Chinese tribunals that the July MOU was enforceable. We
will address each argument in turn and, ultimately, remand for
further proceedings to assess whether the parties’ email
correspondence created a valid arbitration agreement under the
New York Convention.
13 9 U.S.C. §§ 201–208.
14 N.Y. Convention, art. I; 9 U.S.C. §§ 203, 207.
15 China Minmetals, 334 F.3d at 289.

-- 10 of 21 --

11
A. Enforceability of a Foreign Arbitration
Award
The New York Convention requires signatories to
recognize a written arbitration agreement that is “contained in
an exchange of letters” between the parties.16 Jiangsu claims
that its email correspondence with Angle World created an
“exchange of letters” enforceable under the Convention and
that the District Court erred by holding to the contrary. But
before assessing the District Court’s decision, we must pause
to discuss the unusual procedural mechanisms and substantive
requirements applicable to confirmation proceedings under the
New York Convention and Chapter 2 of the FAA.
1. Proceedings under the New York
Convention and FAA
Many of the ordinary procedural rules governing civil
litigation are inapplicable to petitions under the New York
Convention. This is because, by statute, an application to
confirm a foreign arbitration award must “be made and heard
in the manner provided by law for the making and hearing of
motions.”17 Thus, “a petition to confirm an arbitration award
16 N.Y. Convention, art. II.
17 9 U.S.C. § 6. We must navigate a small labyrinth of
provisions to reach this initial conclusion. First, the New York
Convention provides that “the rules of procedure of the
territory where the award is relied upon” apply to confirmation
proceedings. N.Y. Convention, art. III. Second, Federal Rule
of Civil Procedure 81(a)(6)(B) states that the Federal Rules
govern arbitration proceedings except to the extent that the

-- 11 of 21 --

12
. . . is ‘a motion, not a pleading.’”18 We have therefore stressed
that the Federal Rules of Civil Procedure governing pleadings,
including “the pleading standards set forth in Rule 12 . . . are
inapplicable to FAA motions.”19
FAA petitions instead result in “summary proceedings
that do not require [a] district court to carry on a formal judicial
proceeding.”20 The court may review the documents presented
by the parties and often “can, within its discretion, decide an
FAA motion without conducting a full hearing or taking
additional evidence.”21 In other cases, further proceedings may
FAA “provide[s] other procedures.” Fed. R. Civ. P.
81(a)(6)(B). Third, Chapter 1 of the FAA applies to
proceedings brought under the New York Convention “to the
extent that chapter is not in conflict with [Chapter 2] or the
[New York] Convention.” 9 U.S.C. § 208. Finally, 9 U.S.C.
§ 6 falls within Chapter 1 of the FAA, is not superseded by
Chapter 2 of the FAA or the New York Convention, and
therefore applies to this proceeding.
18 CPR Mgmt., S.A. v. Devon Park Bioventures, L.P., 19 F.4th
236, 243 (3d Cir. 2021) (quoting IFC Interconsult, AG v.
Safeguard Int’l Partners, LLC., 438 F.3d 298, 308 (3d Cir.
2006)).
19 PG Publ’g, Inc. v. Newspaper Guild of Pittsburgh, 19 F.4th
308, 313 (3d Cir. 2021); see also CPR Mgmt., S.A., 19 F. 4th
at 243 & n.5; IFC Interconsult AG, 438 F.3d at 308–09.
20 CPR Mgmt., S.A., 19 F.4th at 244 (cleaned up) (citing
Teamsters Loc. 177 v. United Parcel Serv., 966 F.3d 245, 255
(3d Cir. 2020)).
21 PG Publ’g, Inc., 19 F.4th at 314.

-- 12 of 21 --

13
be necessary to resolve a material factual dispute.22 At bottom,
a district court must determine the merits of a confirmation
petition on the record before it, and its review is not necessarily
limited to factual allegations in the petition itself.
Substantively, the FAA provides that a court “shall
confirm” a foreign arbitration award falling under the New
York Convention23 “unless it finds one of the grounds for
refusal or deferral of recognition or enforcement of the award
specified in the . . . Convention.”24 We look to the text of the
treaty to determine when a court may decline to recognize or
enforce a foreign arbitration award.25
The plain language of the New York Convention
subjects confirmation petitions thereunder to a burden-shifting
framework. First, Article IV requires the party seeking
“recognition and enforcement” of an award to make a threshold
showing by supplying, “at the time of the application,”
22 See, e.g., China Minmetals, 334 F.3d at 289–90 (directing
district court “to conduct such further proceedings as may be
appropriate” to resolve an “apparent dispute of facts” bearing
on the validity of an arbitration agreement under the New York
Convention).
23 Neither party disputes that the Foreign Award falls under the
New York Convention.
24 9 U.S.C. § 207.
25 See GE Energy Power Conversion France SAS, Corp. v.
Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1645 (2020)
(“The interpretation of a treaty, like the interpretation of a
statute, begins with its text.”).

-- 13 of 21 --

14
certified copies of (a) the arbitration award and (b) the
“agreement referred to in article II.”26 Second, Article V
permits the party resisting recognition and enforcement to
avoid confirmation by furnishing proof of one of five
affirmative defenses, including that “the agreement referred to
in article II” is invalid “under the law of the country where the
award was made.”27
Article II, in turn, provides that each signatory country
shall recognize “an agreement in writing under which the
parties [agreed] to submit to arbitration.”28 The treaty defines
the phrase “agreement in writing” to include “an arbitral clause
in a contract [that is] . . . signed by the parties or contained in
an exchange of letters or telegrams.”29 Reading Articles II and
IV together, proof of “the agreement referred to in article II,”
i.e., an “agreement in writing,” is an essential prerequisite to
the recognition and enforcement of an award under the New
York Convention.30 Jiangsu claims it satisfied this requirement
26 N.Y. Convention, art. IV.
27 Id., art. V(1). A court may also reject a petition if recognition
or enforcement of the award would be contrary to domestic law
or public policy. Id., art. V(2).
28 Id., art. II.
29 Id.; see also Standard Bent Glass Corp. v. Glassrobots Oy,
333 F.3d 440, 449–50 (3d Cir. 2003) (holding that an
arbitration clause incorporated by reference in a contract
contained in an exchange of letters was enforceable under the
New York Convention).
30 In China Minmetals, the Court suggested in dicta that Article
V of the New York Convention, which lists affirmative

-- 14 of 21 --

15
through proof that Angle World agreed to the unsigned July
MOU through an “exchange of letters.”
The New York Convention does not define the phrase
“exchange of letters.” Fundamentally, such an exchange must
at minimum demonstrate an “agreement” between the parties,
that is, a manifestation of mutual assent to be bound by a
contract containing an arbitration clause.31 Beyond this
uncontroversial statement, however, courts must determine the
existence of an agreement by reference to “background
defenses to enforcement, did not incorporate “Article II’s valid
written agreement requirement.” 334 F.3d at 286 & n.13.
Then-Judge Alito joined the Court’s opinion but wrote a
concurrence to emphasize that a court must reject a
confirmation petition if the petitioner fails to satisfy the
prerequisites of Article IV—which does incorporate Article
II’s written agreement requirement. Id. at 292–94 (Alito, J.,
concurring).
We find Justice Alito’s textual analysis persuasive for the
reasons discussed above and join our sister circuits that have
concluded a party must supply proof of a written agreement to
obtain enforcement under the New York Convention. See
Reddy v. Buttar, 38 F.4th 393, 399 (4th Cir. 2022); Al-Qarqani
v. Chevron Corp., 8 F.4th 1018, 1023 (9th Cir. 2021); Czarina,
L.L.C. v. W.F. Poe Syndicate, 358 F.3d 1286, 1292 (11th Cir.
2004).
31 See, e.g., Agreement, Black’s Law Dictionary (11th ed.
2019).

-- 15 of 21 --

16
principles of . . . contract law,” to the extent those principles
do not conflict with the New York Convention.32
With these general procedural and substantive
guidelines governing the New York Convention in mind, we
will next examine the decision of the District Court.
2. The District Court’s Decision
Having clarified the scope of a court’s review of
petitions under the New York Convention, we now turn to
32 GE Energy, 140 S. Ct. at 1643–44 (citing Arthur Andersen
LLP v. Carlisle, 556 U.S. 624, 630 (2009) and 9 U.S.C. § 208).
The Supreme Court explained in GE Energy that “the
provisions of Article II contemplate the use of domestic
doctrines to fill gaps in the [New York] Convention,” but
declined to determine “which body of law” courts should
apply. Id. at 1645, 1648; see also, e.g., Standard Bent Glass,
333 F.3d at 444 n.7 (interpreting arbitration agreement
between Pennsylvania buyer and Finnish manufacturer under
Pennsylvania law because “performance occurred in
Pennsylvania” and neither party suggested that the CISG
applied to the parties’ dispute); Setty v. Shrinivas
Sugandhalaya LLP, 3 F.4th 1166, 1168 & n.1 (9th Cir. 2021)
(applying “federal common law to threshold issues of
arbitrability in New York Convention cases”).
The parties have not briefed this issue, and we need not address
it to resolve this appeal. It may very well be that under the
facts of this case, the choice of law does not materially affect
the result. In any case, we leave such determinations to the
District Court in the first instance.

-- 16 of 21 --

17
Jiangsu’s argument that the District Court failed to properly
analyze whether the emails between the parties created an
enforceable “exchange of letters” under the New York
Convention. We agree that the District Court did not properly
conduct this analysis and will therefore vacate the order of
dismissal and remand for further proceedings.
As an initial matter, several procedural anomalies
affected the proceedings below. After Jiangsu filed the
Petition, Angle World moved to dismiss it under Rule 12(b)(6),
which does not apply to FAA proceedings.33 During the
ensuing motion practice, the parties submitted evidence far
outside the four corners of the Petition, which is ordinarily
improper on a Rule 12(b)(6) motion to dismiss.34 The District
Court then granted Angle World’s motion and dismissed the
Petition without fully setting out the legal standard it used to
evaluate the motion.
These irregularities may have been harmless. At the
time it rendered its decision, it appears that the District Court
had an evidentiary record before it, including emails submitted
by the parties. The District Court also stated that it considered
Jiangsu’s argument that Angle World agreed to the July MOU
through a “combination of their correspondence and conduct”
but found that “[Jiangsu] has not produced any exchange of
letters showing Angle World’s agreement to arbitrate.”35
However, the Court performed little analysis to reach this
33 PG Publ’g, Inc., 19 F.4th at 313–14.
34 See, e.g., Wolfington v. Reconstructive Orthopaedic Assocs.
II PC, 935 F.3d 187, 197 (3d Cir. 2019).
35 Appx8.

-- 17 of 21 --

18
conclusion, and it is unclear whether it indeed considered any
evidence outside the Petition.
Notably, the only two documents referenced in the
District Court’s opinion—the Foreign Award and the July
MOU—were attached as exhibits to the Petition. The Court
did not cite to or reference any of the evidence submitted with
the parties’ motion papers, and we are simply unable to tell
whether it merely found that evidence unpersuasive or whether
it limited its review to the four corners of the Petition.
Crucially, the opinion did not explain its implicit conclusion
that Angle World’s electronic “exchange of letters” was
insufficient to manifest assent to the July MOU, nor did it
explain the extent to which, if at all, background principles of
contract law factored into that conclusion.
As these determinations may require some degree of
factfinding, we conclude that the best course is to vacate the
order of dismissal and remand for the District Court to address
them in the first instance.36 On remand, Jiangsu may file a
36 We disagree with Jiansgu’s suggestion that our decision in
Standard Bent Glass requires an outright reversal of the
District Court in this case. There, we held that a domestic
buyer agreed to an arbitration clause that was incorporated by
reference in a foreign manufacturer’s form sales agreement.
333 F.3d at 446–48. The buyer had objected to several
provisions in the agreement other than the arbitration clause,
but had otherwise agreed to it, and we held that this was both
an “acceptance” of the arbitral clause under Pennsylvania’s
Uniform Commercial Code and an “exchange of letters” under
the New York Convention. Id. at 447, 449–50.

-- 18 of 21 --

19
renewed motion to confirm the Arbitration Award supported
by record evidence, and Angle World may respond in kind.
The Court may exercise its discretion to resolve Jiangsu’s
petition on the papers, or it may conduct any further
proceedings it deems necessary, mindful that a confirmation
petition presents a limited inquiry that typically should not
“develop into full scale litigation.”37
B. Deference to Chinese Tribunals
We last address Jiangsu’s arguments that the District
Court was bound by prior decisions of the CIETAC and
Chinese Court declaring the July MOU enforceable, and that
Angle World effectively waived its right to relitigate
arbitrability by participating in the Chinese proceedings. We
disagree with each contention.
First, Chapter 2 of the FAA requires a district court “to
determine independently the existence of an agreement to
arbitrate even though an arbitration panel in a foreign state
already had rendered an award.”38 A court need not, and
should not, defer to a foreign panel’s finding of arbitrability
because this would “render the prerequisites to enforcement of
Here, by contrast, it is not clear that Pennsylvania law applies,
and there is record evidence that could be read to suggest that,
unlike in Standard Bent Glass, Angle World at least initially
rejected the terms of the July MOU. Consequently, Standard
Bent Glass does not necessarily dictate the outcome here.
37 PG Pub’g, Inc., 19 F.4th at 314 (citation omitted).
38 China Minmetals, 334 F.3d at 284.

-- 19 of 21 --

20
an award set forth in Article IV [of the New York Convention]
superfluous” and make them “a meaningless formality.”39
Second, the Chinese Court determined that the July
MOU was enforceable under Chinese domestic law but did not
analyze the separate issues of (a) whether an arbitration award
would be subject to confirmation in a foreign nation under
Article IV of the New York Convention or (b) whether the
parties’ email exchange satisfies the “writing” requirement of
Article II. While United States courts will in many cases “give
effect to . . . judicial acts of a foreign nation” under principles
of international comity, a foreign court is “not entitled to
comity on issues the court did not decide.”40
Third, Angle World did not waive its right to an
independent ruling on arbitrability by a United States court
because it contemporaneously objected to arbitration in China.
“[W]here a party objects to arbitrability but nevertheless
participates in the arbitration proceedings, waiver of the
challenge to arbitral jurisdiction will not be inferred.”41
39 Id. at 293 (Alito, J. concurring).
40 Remington Rand Corp.-Delaware v. Bus. Sys. Inc., 830 F.2d
1260, 1266 (3d Cir. 1987) (citations omitted). We need not
determine the extent to which a foreign judgment that is
otherwise entitled to comity must be given preclusive effect in
a United States court proceeding. See, e.g., In re Cortuk, 633
B.R. 236, 279–80 (Bankr. D.N.J. 2021).
41 China Minmetals, 334 F.3d at 290. In China Minmetals, we
noted an open question as to “whether federal or state law
should govern the waiver issue” but held that the application
of one over the other “would not have altered the outcome of

-- 20 of 21 --

21
Accordingly, the District Court correctly determined
that it was not bound by the decisions of Chinese tribunals and
that Angle World did not waive its right to contest
enforcement. On remand, the District Court should make an
independent determination as to arbitrability in accordance
with our instructions above.
V. Conclusion
For the foregoing reasons, we will vacate the District
Court’s order dismissing Jiangsu’s Petition and remand for
further proceedings consistent with this Opinion.
VACATED and REMANDED for further proceedings.
the case.” Id. at 290–91. The same is true here. Under either
federal or Pennsylvania law, a party who unsuccessfully
objects to arbitration may participate in the arbitration
proceedings and await a decision before seeking to vacate the
award. See id. at 290; Donegal Ins. Co. v. Longo, 610 A.2d
466, 468 (Pa. Super. 1992) (citing Bole v. Nationwide Ins. Co.,
379 A.2d 1346, 1348–49 (Pa. 1977)).

-- 21 of 21 --