Marseille-Kliniken Ag v. Republic of Equatorial Guinea

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 25, 2024 Decided September 23, 2025
No. 23-7169
MARSEILLE-KLINIKEN AG,
APPELLEE
v.
REPUBLIC OF EQUATORIAL GUINEA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-03572)
Malik Havalic argued the cause for appellant. With him
on the briefs were Michael A. DeBernardis and Carter
Rosekrans. Shayda Vance entered an appearance.
Paul D. Schmitt argued the cause for appellee. With him
on the brief was Mary E. Gately.
Before: KATSAS, Circuit Judge, and GINSBURG and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.

-- 1 of 16 --

2
KATSAS, Circuit Judge: Marseille-Kliniken AG, a Swiss
company, obtained an arbitral award against the Republic of
Equatorial Guinea arising from a contractual dispute in that
country. In the arbitration, the parties contested whether the
dispute-resolution clause in the contract required Marseille-
Kliniken to exhaust local remedies in Equatoguinean courts
before proceeding to international arbitration in Switzerland.
The arbitral panel construed the clause not to require such
exhaustion.
Marseille-Kliniken moved to confirm the award in our
district court. The court held that the arbitration exception to
the Foreign Sovereign Immunities Act conferred jurisdiction
despite the parties’ dispute over the meaning of the arbitration
clause. On the merits, the court deferred to the arbitrators’
construction of the clause. We agree with the jurisdictional
ruling, but we disagree with the court’s deferential approach on
the merits.
I
A
The Foreign Sovereign Immunities Act (FSIA) makes
foreign sovereigns “immune from the jurisdiction of the courts
of the United States” unless a specific FSIA exception applies.
28 U.S.C. § 1604. One such exception covers petitions “to
confirm an award made pursuant to … an agreement to
arbitrate,” if “the agreement or award is or may be governed
by” a United States treaty “calling for the recognition and
enforcement of arbitral awards.” Id. § 1605(a)(6)(B).
A party seeking to confirm an arbitral award under this
exception bears the initial burden of production to show “three
jurisdictional facts”: (1) an agreement to arbitrate, (2) an
arbitral award, and (3) a treaty potentially governing its

-- 2 of 16 --

3
enforcement. NextEra Energy Glob. Holdings B.V. v. Kingdom
of Spain, 112 F.4th 1088, 1100 (D.C. Cir. 2024) (quoting
Chevron Corp. v. Republic of Ecuador, 795 F.3d 200, 204 n.2
(D.C. Cir. 2015) (cleaned up)). If a private party satisfies this
burden, the foreign sovereign bears the burden of persuasion to
show that the arbitration exception does not apply. See id.
B
The Federal Arbitration Act (FAA) provides for the
confirmation of arbitral awards—that is, conversion of the
awards into enforceable legal judgments. LLC SPC Stileks v.
Republic of Moldova, 985 F.3d 871, 875 (D.C. Cir. 2021).
The FAA addresses enforcement of the United Nations
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, which is commonly known as the New York
Convention. See 9 U.S.C. §§ 201–08 (FAA); 21 U.S.T. 2517
(1958) (New York Convention). The Convention “is a
multilateral treaty that requires signatory nations like the
United States to honor the results of international arbitrations
that comply with the treaty.” Republic of Argentina v. AWG
Grp. Ltd., 894 F.3d 327, 332 (D.C. Cir. 2018). The Convention
governs the “enforcement of arbitral awards” made in another
sovereign state. N.Y. Convention art. I.1.
The FAA requires federal courts to confirm such awards
unless one of the grounds for refusal in the New York
Convention is present. 9 U.S.C. § 207. As relevant here, the
Convention permits a court to refuse enforcement if the award
addresses a dispute “not falling within the terms of the
submission to arbitration.” N.Y. Convention art. V.1(c). The
grounds for refusal “are tightly construed, and the burden is
placed on the party opposing enforcement.” Diag Hum. S.E. v.
Czech Republic – Ministry of Health, 907 F.3d 606, 609 (D.C.
Cir. 2018).

-- 3 of 16 --

4
C
In 2009, Swiss healthcare provider Marseille-Kliniken AG
contracted with Equatorial Guinea to modernize and eventually
run a medical clinic in that country. At some point, the parties’
relationship soured. Equatorial Guinea claimed that Marseille-
Kliniken was unqualified to perform the necessary work.
Marseille-Kliniken responded that the state simply wanted to
renege on the contract. Regardless, all agree that Equatorial
Guinea refused to let the company run the clinic after it had
spent money and time modernizing it.
Marseille-Kliniken initiated arbitration in Switzerland.
The arbitrators ruled for the company and awarded damages.
The parties later settled this aspect of their dispute.
Marseille-Kliniken then initiated a second arbitration in
Switzerland to recover other damages. Equatorial Guinea
contested the arbitrators’ jurisdiction. It claimed that the
contract’s dispute-resolution clause barred the company from
proceeding to international arbitration without first seeking
relief in the Equatoguinean courts.
Like the rest of the agreement, the dispute-resolution
clause appears in both Spanish and German. The arbitrators
credited, and the parties accept, the following translations from
these languages:
Spanish Version German Version
In the event of disputes[,] the
Parties will meet and solve
the problem amicably,
otherwise they will turn to
the Court of Equatorial
Guinea. If one of the parties
In the event a dispute should
arise from this contract the
Parties shall attempt to find
an amicable solution prior to
calling upon the Courts in
Equatorial Guinea. In the

-- 4 of 16 --

5
does not agree, the Court of
the Chamber of Commerce
in Zürich may be called
upon.
event disputes should arise,
the Parties agree to engage in
Arbitration Proceedings
before the Chamber of
Commerce in Zürich.
J.A. 102–03. Both translations state that the parties should first
attempt to resolve any disputes amicably. Both provide for
arbitration if a dispute cannot otherwise be resolved. And both
reference litigation in the Equatoguinean courts.
In contesting the arbitrators’ jurisdiction, Equatorial
Guinea invoked this contractual reference as well as
background principles of customary international law.
Typically, an entity wronged by a foreign sovereign must
pursue remedies in the sovereign’s domestic courts before
resorting to international arbitration. See Interhandel (Switz. v.
U.S.), 1959 I.C.J. 6, 27 (Mar. 21) (“The rule that local remedies
must be exhausted before international proceedings may be
instituted is a well-established rule of customary international
law.”); Restatement (Third) of the Foreign Relations Law of
the United States Part VII, intro. note & § 713 cmt. f (A.L.I.
1987) (Third Restatement); C. Dugan et al., Exhaustion of
Local Remedies, in Investor-State Arbitration 347–48 (2008)
(Dugan). Equatorial Guinea argued that the agreement
codified this background rule, requiring Marseille-Kliniken to
exhaust its remedies in Equatoguinean courts before resorting
to arbitration in Switzerland.
The arbitral panel rejected this jurisdictional objection. It
focused on the second sentence in the translations above. The
Spanish version provides for arbitration if one party “does not
agree.” J.A. 103. The German version provides for arbitration
if “disputes should arise.” Id. at 102. The panel found the
clause ambiguous on whether these terms refer to disagreement

-- 5 of 16 --

6
with the merits of a decision by the Equatoguinean courts or
with sending a dispute to those courts at all. Id. at 105–06. The
panel concluded that the second interpretation “makes more
sense”—if a party disagrees with submitting the dispute to the
local courts, it may pursue international arbitration. See id. at
106. The arbitrators reasoned that, under Equatorial Guinea’s
interpretation, either a decision by its domestic courts would
preclude arbitration or there could be conflicting “enforceable
decisions in the same case.” Id. On the merits, the panel again
ruled for Marseille-Kliniken and awarded it over $9 million in
damages.
Marseille-Kliniken filed a petition to confirm the award in
our district court. The court held that it had subject-matter
jurisdiction under the FSIA’s arbitration exception. Marseille-
Kliniken AG v. Republic of Equatorial Guinea, No. 20-cv-
3572, 2023 WL 8005153, at *2 (D.D.C. Nov. 17, 2023). The
court then held that the Supreme Court’s decision in BG Group,
PLC v. Republic of Argentina, 572 U.S. 25 (2014), required it
to defer to the arbitrators’ interpretation of the dispute-
resolution clause. Under BG Group, we presume that the
parties to an arbitration agreement want courts to decide
questions of “arbitrability,” but want arbitrators to decide
questions regarding “procedural preconditions” for arbitration.
See id. at 33–35. The district court held that the dispute-
resolution clause here fell into the latter category, so it deferred
to the arbitrators’ construction of it and confirmed the award.
Marseille-Kliniken, 2023 WL 8005153, at *3.
Equatorial Guinea appealed.
II
Equatorial Guinea first argues that the district court lacked
subject-matter jurisdiction under the FSIA. We consider that
question de novo. See Stileks, 985 F.3d at 879. Recall that

-- 6 of 16 --

7
Marseille-Kliniken bore the initial burden to produce evidence
regarding three jurisdictional elements: an arbitration
agreement, an arbitral award, and a potentially applicable
treaty. NextEra, 112 F.4th at 1100. It easily cleared that
hurdle. The company produced its agreement with Equatorial
Guinea, which contains the dispute-resolution clause, and the
Swiss arbitral award. It also argued that the New York
Convention governs because the company obtained its award
in Switzerland, a signatory country. In response, Equatorial
Guinea disputes only the first jurisdictional element—whether
the parties formed an agreement to arbitrate.
The FSIA requires “an agreement made by the foreign
state with or for the benefit of a private party to submit”
disputes to arbitration. 28 U.S.C. § 1605(a)(6). In assessing
whether this requirement is met, we focus on the “existence”
of an arbitration agreement, rather than on disputes about its
“scope.” NextEra, 112 F.4th at 1101. In other words, to
succeed in a jurisdictional challenge, “the sovereign must
attack the existence or validity of the arbitration agreement,”
not merely argue that it is inapplicable to a particular dispute.
Id.
Equatorial Guinea contends that the dispute-resolution
clause required Marseille-Kliniken to seek redress in its courts
before pursuing arbitration. The parties agree that any decision
in those courts would preclude arbitration of Marseille-
Kliniken’s claims for breach of contract. But that would not
have foreclosed arbitration altogether. As Equatorial Guinea
sees it, the losing party in the Equatoguinean courts could have
sought to arbitrate international-law claims for a denial of
justice. Under international law, a foreign investor may claim
that a sovereign’s domestic courts failed to afford it procedural
fairness. See Third Restatement § 711 cmt. a. In other words,
the denial-of-justice claim posited by Equatorial Guinea would

-- 7 of 16 --

8
arise not from the merits of the underlying dispute, but from
how the Equatoguinean courts adjudicated it. So, Equatorial
Guinea’s argument about the dispute-resolution clause
concerns the scope of the arbitration agreement, not its
existence. It thus fails to defeat subject-matter jurisdiction.
Equatorial Guinea also argues that the dispute-resolution
clause is invalid because neither its law nor Swiss law allows
parties to submit disputes to arbitration in the first instance.
But arguments that an arbitration agreement violates domestic
law are merits defenses under the New York Convention—not
jurisdictional defenses under the FSIA. See NextEra, 112 F.4th
at 1103–04; New York Convention art. V.1(a).
III
On the merits, the district court held that BG Group
required it to defer to the arbitrators’ construction of the
dispute-resolution clause. We respectfully disagree.
A
The dispute in BG Group arose after BG Group plc, a
British firm, acquired an Argentine gas company. See 572 U.S.
at 29. At the time of the acquisition, Argentine law required
gas tariffs to be calculated in dollars and set at levels to assure
investors of a reasonable return. See id. Later, Argentina
enacted new laws requiring the tariffs to be calculated in pesos,
which caused BG to incur substantial losses. See id. at 29–30.
BG claimed that Argentina’s conduct violated a bilateral
investment treaty between the United Kingdom and Argentina.
The treaty incorporated background norms of customary
international law, including a requirement of fair and equitable
treatment and a prohibition of uncompensated expropriation.
Agreement for the Promotion and Protection of Investments,

-- 8 of 16 --

9
Dec. 11, 1990, 1765 U.N.T.S. 34, 35–36. The treaty also
contained an arbitration clause governing investment disputes
“which arise within the terms of this Agreement”—i.e.,
disputes arising under the treaty. Id. at 37–38. The clause
required an aggrieved investor to raise such claims in the
domestic courts of the offending government. Id. It permitted
the aggrieved investor to pursue international arbitration if it
was unsatisfied with the “final decision” of the domestic courts
or if no such decision was made within eighteen months. Id.
at 38. And it provided that the ensuing “arbitration decision
shall be final and binding on both Parties.” Id.
BG initiated arbitration against Argentina without first
seeking relief in the Argentine courts. It claimed that
Argentina’s new law violated the treaty provisions requiring
fair and equitable treatment of foreign investors and prohibiting
uncompensated expropriation. 572 U.S. at 30. Argentina
objected that the arbitral panel lacked jurisdiction because BG
had failed to pursue domestic remedies before initiating
arbitration. Id.
The arbitral panel rejected Argentina’s contention. It
concluded that certain Argentine laws, which made it difficult
for foreign investors to litigate in its domestic courts,
“implicitly excused compliance with the local litigation
requirement.” 572 U.S. at 31. These included laws staying the
effect of Argentine court judgments and imposing legal
disabilities on investors who filed claims under the treaty. See
id. at 30–31. After excusing the failure to exhaust, the
arbitrators ruled for BG on the merits. Id. at 31.
When BG sought to confirm the award, Argentina again
raised its exhaustion objection. The Supreme Court framed its
analysis around the question “who—court or arbitrator” should
decide questions related to arbitrability. 572 U.S. at 32. The

-- 9 of 16 --

10
Court explained that parties to an arbitration agreement may
decide what questions to commit to the arbitrators. Id. at 33–
34. The Court framed two competing presumptions to help
discern the parties’ intent if the relevant agreement is silent or
ambiguous. Id. On the one hand, “courts presume that the
parties intend courts, not arbitrators” to resolve substantive
“disputes about arbitrability.” Id. at 34 (cleaned up). On the
other hand, “courts presume that the parties intend arbitrators,
not courts, to decide disputes about the meaning and
application of particular procedural preconditions for the use of
arbitration.” Id. The Court explained that such procedural
provisions include “time limits, notice, laches, estoppel, and
other conditions” that determine “when the contractual duty to
arbitrate arises, not whether there is a contractual duty to
arbitrate at all.” Id. at 35 (cleaned up). In contrast, provisions
that specify “whether [the arbitration] may occur or what its
substantive outcome will be on the issues in dispute” are
substantive ones presumptively for courts to interpret and
apply. Id. at 35–36. So too are provisions about “whether th[e]
arbitration clause covers a certain kind of dispute” or those
having a “direct impact” on its resolution. Id. at 42.
Applying this distinction, the Court held that the
investment treaty’s local-litigation provision was a mere
procedural precondition to be construed by arbitrators. 572
U.S. at 35–36. According to the Court, the provision neither
determined whether the arbitration clause covered a certain
kind of dispute nor had any bearing on its outcome. Id. at 35–
36, 42. In particular, the Court noted that the treaty itself made
the arbitrators’ decision—not the earlier decision of the
domestic courts—“final and binding.” See id. at 42. Because
the exhaustion requirement thus had no substantive effect on
the outcome of arbitration, it was merely “a claims-processing
rule” for the arbitrators to construe. Id.

-- 10 of 16 --

11
B
The local-litigation provision here functions as more than
just a claims-processing rule. As explained above, the
exhaustion requirement in BG Group appeared in a treaty
codifying fair-treatment and just-compensation rules that arise
under public international law. In contrast, the local-litigation
provision here appears in a contract between Equatorial Guinea
and one particular investor, which would be governed by the
domestic, private law of one relevant sovereign. See Third
Restatement § 712 cmt. h (state-investor contracts are typically
assessed “under applicable national law” rather than
international law). Perhaps the law of Equatorial Guinea would
apply, because the contract involved the management of a
hospital in Equatorial Guinea. Or perhaps Swiss law would
apply, because the dispute-resolution provision called for
arbitration in Switzerland. Either way, the local-litigation
provision implicates contract claims arising under domestic
law, not international claims that arise from treaties or custom.
This distinction is important. International tribunals are
best situated to resolve international claims, which is perhaps
why the investment treaty in BG Group made the arbitral
decision “final and binding.” See 572 U.S. at 42. And it is
perhaps why, in BG Group, the Court stressed that the
arbitrators “need not give weight to the local court’s decision”
on the international claims at issue. Id. Here, in contrast, both
parties agree that any resolution of the contract claims by the
domestic courts of Equatorial Guinea would bind the Swiss
arbitral forum as to those claims. Instead, Marseille-Kliniken
could pursue before the arbitrators only international claims
keyed to any gross abuse in how the domestic courts handled
the domestic claims before them. As noted above, international

-- 11 of 16 --

12
law has long recognized such claims for “denial of justice.”
See Third Restatement § 711 cmt. a.1
Given this interplay between contractual and international
claims, the local-litigation provision here has substantive
import. Without it, Marseille-Kliniken could freely present to
the arbitrators its breach-of-contract claims, as would normally
occur for contract claims governed by arbitral agreements
between private parties. But a decision by the Equatoguinean
courts on the contract claims would simultaneously preclude
arbitration on the contract claims and possibly create
international claims for denial of justice. The provision thus
bears not only on when the parties may arbitrate, but also on
what claims they may submit to the arbitrators. Under BG
Group, such a provision bears on substantive arbitrability, and
is thus presumptively for courts to construe. See 572 U.S. at
35–36, 42.
Another aspect of BG Group reinforces this conclusion.
Recall that Argentina had enacted laws hindering access to its
domestic judiciary, leading the arbitral panel to excuse
compliance with an exhaustion requirement that applied by its
terms. See 572 U.S. at 30–31. In deferring to that decision, see
1 See also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 783
n.11 (D.C. Cir. 1984) (per curiam) (Edwards, J., concurring) (noting
that a party bringing such a claim could argue “corruption, threats,
unwarrantable delay, flagrant abuse of judicial procedure, a
judgment dictated by the executive, or so manifestly unjust that no
court which was both competent and honest could have given it”
(cleaned up)); Borchard, The “Minimum Standard” of the Treatment
of Aliens, 38 Mich. L. Rev. 445, 460 (1940) (a party could argue
denial of “[f]air courts, readily open to aliens, administering justice
honestly, impartially, without bias or political control”); The Denial
of Justice Standard in International Law, 97 Am. J. of Int’l L. 438,
439 (Murphy ed., 2003) (similar).

-- 12 of 16 --

13
id. at 45, the Court effectively concluded that BG had
established at least a colorable case for applying a futility
exception to exhaustion that is well-recognized in international
law. See, e.g., Third Restatement § 713 cmt. f; Dugan 352.
Here, no such exception would colorably apply, as Marseille-
Kliniken does not contend that Equatorial Guinea has imposed
any impediments on its ability to litigate contract claims in the
domestic courts of that country.
C
Nothing in the contract between Marseille-Kliniken and
Equatorial Guinea rebuts the presumption that courts should
decide threshold questions of arbitrability. Such threshold
questions include deciding whether the parties have satisfied
any preconditions for arbitration. See Henry Schein, Inc. v.
Archer & White Sales, Inc., 586 U.S. 63, 67–68 (2019).
To delegate threshold arbitrability questions to arbitrators,
parties must do so “clearly and unmistakably.” Howsam v.
Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (cleaned
up); see also First Options of Chi., Inc. v. Kaplan, 514 U.S.
938, 944 (1995). This Court has held that such a clear and
unmistakable delegation can exist where the arbitration
agreement incorporates a set of rules authorizing the arbitrators
to determine arbitrability. For example, it can be enough to
incorporate the Arbitration Rules of the United Nations
Commission on International Trade Law (UNCITRAL), which
provide that the “arbitral tribunal shall have the power to rule
on its own jurisdiction.” See Stileks, 985 F.3d at 878–79;
Chevron, 795 F.3d at 207–08. On the other hand, enlisting the
American Arbitration Association “for help in choosing a
successor arbitrator” is not enough, even though AAA rules
authorize the arbitrators to determine arbitrability. See Dist.
No. 1 Pac. Coast Dist. Marine Eng’rs’ Beneficial Ass’n AFL-

-- 13 of 16 --

14
CIO v. Liberty Mar. Corp., 998 F.3d 449, 461–62 (D.C. Cir.
2021). As we explained, the “mention of the AAA … does not
embody an incorporation of [its] rules, let alone a clear and
unmistakable incorporation.” Id. at 462.
In this case, nothing in the dispute-resolution clause
delegates arbitrability questions to arbitrators. Marseille-
Kliniken urges a delegation because the dispute-resolution
clause authorized arbitration before the Zurich Chamber of
Commerce, which presumptively uses the Swiss Chambers’
Arbitration Rules, and those rules authorize arbitrators to
determine arbitrability. That would be a strong argument if the
Zurich Chamber were legally bound to use the Swiss Rules; for
instance, a contractual venue clause requiring adjudication in a
specific district court surely would entail the use of that court’s
local rules. But nothing binds arbitration services to use any
particular set of rules. To the contrary, Swiss law allows the
parties to “agree on individual rules tailored to their specific
case, on institutional arbitration rules, on independent
arbitration rules (e.g. UNCITRAL Arbitration Rules) or on
national procedural law.” Swiss Priv. Int’l L. Act (Ch. 12), art.
182 at 931, https://perma.cc/ZAW7-VM44. And the “arbitral
tribunal’s authority to determine the procedure is subsidiary to
the parties’ agreement.” Id. So, enlisting the services of the
Zurich Chamber of Commerce says little about what specific
procedural rules would govern any individual arbitration.
Indeed, in this very case, the arbitrators did not fix the
governing procedural rules until a procedural order entered in
December 2015. See J.A. 549.
Marseille-Kliniken argues that Equatorial Guinea forfeited
its current argument by not specifically objecting to use of the
Swiss Rules at an initial procedural meeting. But it is
Marseille-Kliniken’s burden to show that the dispute-
resolution clause clearly and unmistakably delegated

-- 14 of 16 --

15
arbitrability decisions. See First Options, 514 U.S. at 944–46.
Moreover, Equatorial Guinea repeatedly argued to the
arbitrators that the arbitral panel lacked jurisdiction to decide
anything unless and until Marseille-Kliniken exhausted its
remedies in Equatoguinean courts. That objection subsumes
the narrower, subsidiary objection that the arbitral panel should
not have the sole and final word on the specific question of
exhaustion.
* * * *
In sum, the district court erred in deferring to the arbitral
panel’s construction of the dispute-resolution clause.
IV
Equatorial Guinea asks us to interpret the clause ourselves
and hold that it requires exhaustion. We decline to do so. Like
the Supreme Court, “we are a court of review, not of first
view,” so we ordinarily do not decide contested questions not
resolved below. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7
(2005). And we should particularly avoid doing so here, where
the merits may require factfinding or may turn on unfamiliar
questions of Equatoguinean or Swiss law.
One significant question involves determining what law
should govern interpretation of the dispute-resolution clause.
Perhaps the law of Equatorial Guinea because the contract
required, and the dispute involved, primary conduct occurring
almost entirely in that country. Perhaps Swiss law, because the
parties opted for arbitration in Switzerland. Perhaps even
United States law, given the Supreme Court’s choice in BG
Group to apply “presumptions supplied by American law” in
addressing a dispute arising almost entirely in Argentina. See
572 U.S. at 37. The contract does not contain a choice-of-law
clause, and the parties did not brief this issue.

-- 15 of 16 --

16
Beyond the choice-of-law question lie substantive
questions regarding what interpretive principles should govern.
The arbitrators here concluded that the dispute-resolution
clause is ambiguous on the specific question whether
exhaustion is required. If that is so, should the court just decide
what reading of the governing text is most plausible? To what
extent should it consider extrinsic evidence, like the testimony
of Marseille-Kliniken’s founder regarding his understanding of
the contract? To what extent should domestic law seek to
conform to any international-law norm favoring exhaustion of
local remedies? The parties did not address these issues in any
detail. Finally, should the court consider at all Equatorial
Guinea’s Foreign Investment Law, which requires exhaustion
of local remedies for disputes arising from investment projects
approved under that law? See J.A. 282–83. Equatorial Guinea
contends that this law is dispositive. But at oral argument,
neither party could tell us whether the agreement at issue here
had been so approved.
Given the extent of uncertainty on these points, we think it
best to remand for the parties to address these issues and the
district court to resolve them in the first instance. We therefore
vacate the district court’s judgment and remand for further
proceedings consistent with this opinion.
So ordered.

-- 16 of 16 --