throbber
United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 21-1831
`
`RODRIGO RIBADENEIRA; SUPERDEPORTE PLUS PERU S.A.C.,
`
`Petitioners, Appellees,
`
`v.
`
`NEW BALANCE ATHLETICS, INC.,
`
`Respondent, Appellant.
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Allison D. Burroughs, U.S. District Judge]
`
`
`
`Before
`
`Kayatta, Lipez, and Howard,
`Circuit Judges.
`
`
`
`
`Kevin P. Martin, with whom Mark E. Tully, Kate E. MacLeman,
`
`Gerard J. Cedrone, and Goodwin Procter LLP were on brief, for
`appellant.
`
`David M. Cooper, with whom David M. Orta, Julianne F. Jaquith,
`
`Gregg Badichek, and Quinn Emanuel Urquhart & Sullivan, LLP were on
`brief, for appellees.
`
`
`
`April 6, 2023
`
`
`
`
`
`
`
`

`

`LIPEZ, Circuit Judge. At the beginning of 2013,
`
`appellant New Balance Athletics, Inc. ("New Balance") entered into
`
`a contract (the "Distribution Agreement") with Peruvian Sporting
`
`Goods S.A.C. ("PSG") to distribute its products in Peru. This
`
`Distribution Agreement contained an arbitration clause, which New
`
`Balance invoked in 2018 to initiate arbitration proceedings
`
`against PSG. Also joined as respondents in this arbitration were
`
`appellees Rodrigo Ribadeneira, the controlling owner of PSG, and
`
`Superdeporte Plus Peru S.A.C. ("Superdeporte"), another business
`
`entity owned by Ribadeneira in Peru. The arbitrator issued two
`
`awards, which imposed liability on PSG and Superdeporte for breach
`
`of the Distribution Agreement, and on PSG, Superdeporte, and
`
`Ribadeneira for tortious interference. The arbitrator also
`
`rejected three counterclaims brought against New Balance.
`
`Ribadeneira and Superdeporte subsequently filed a motion
`
`in the district court to vacate the arbitration awards. The awards
`
`had to be vacated, they contended, because they were nonsignatories
`
`of the Distribution Agreement, and hence not subject to its
`
`arbitration clause.1 Agreeing that the arbitrator had improperly
`
`exercised jurisdiction over Ribadeneira and Superdeporte, the
`
`
`1 PSG did not join Ribadeneira and Superdeporte in filing the
`motion to vacate, and indeed, appellees expressly recognize that
`PSG was bound, as a signatory to the Distribution Agreement, to
`abide by that agreement's arbitration clause. Consequently, PSG
`is not a party to this appeal.
`
`- 2 -
`
`

`

`district court vacated the awards. Because we conclude that
`
`theories of assumption and equitable estoppel apply here to support
`
`arbitral jurisdiction over appellees, we reverse the judgment of
`
`the district court.
`
`I.
`
`The resolution of this appeal turns in part on the
`
`parties' actions before and during the arbitration proceedings.
`
`Hence, we recount the tangled history of the parties' business
`
`relationship, the litigation in Peru arising out of the breakdown
`
`of that relationship, and the arbitration proceedings that
`
`resulted in the contested awards.2
`
`A. The Original Distribution Agreement and Negotiations over a
`New Agreement
`
`
`On January 1, 2013, New Balance and PSG entered into the
`
`Distribution Agreement, pursuant to which PSG would serve as the
`
`exclusive wholesale distributor of New Balance products in Peru in
`
`exchange for paying distribution fees to New Balance. At the time,
`
`Ribadeneira was PSG's majority shareholder but was not himself a
`
`party to the agreement. The agreement was set to expire after an
`
`initial term of three years but would automatically renew for an
`
`
`2 As an aid to understanding the procedural history of the
`Peruvian litigation, the arbitration proceedings, and the
`challenge to the arbitration awards in the district court, we
`include an Appendix to this opinion in the form of a chart that
`summarizes the claims and counterclaims brought by the various
`parties in the various forums, as well as the key rulings of the
`arbitrator and the district court.
`
`- 3 -
`
`

`

`additional year absent timely notice by either party objecting to
`
`renewal.
`
`Section 21 of the Distribution Agreement contained an
`
`arbitration clause, providing that:
`
`The parties agree that any and all disputes
`(whether in contract or any other theories of
`recovery) related to or arising out of this
`Agreement or the relationship, its application
`and/or
`termination
`(including
`post-
`termination obligations) shall be settled by
`final and binding arbitration in accordance
`with the UNCITRAL Arbitration Rules.
`
`The Distribution Agreement also included two choice-of-
`
`law provisions. First, there is a provision in Section 20 setting
`
`out the law governing the agreement:
`
`This Agreement . . . shall be governed by and
`construed in accordance with the laws of the
`Commonwealth of Massachusetts, U.S.A. without
`giving effect to principles of conflicts of
`laws . . . .
`
`Second, there is a provision in Section 21, which dealt with
`
`arbitration, requiring that:
`
`The arbitrator shall determine the matters in
`dispute in accordance with the laws of the
`Commonwealth of Massachusetts, USA.
`
`While the Distribution Agreement was still in effect,
`
`New Balance and PSG began negotiating a new distribution agreement.
`
`By that time, PSG was in arrears with respect to distribution fees
`
`it owed New Balance.3 In September 2015, the parties exchanged a
`
`
`3 Although the parties disagreed below about the extent of
`
`- 4 -
`
`

`

`draft of an "Amended and Restated Distribution Agreement" (the
`
`"New Agreement"). While some of the terms in the putative New
`
`Agreement differed from those in the original Distribution
`
`Agreement, its arbitration clause remained identical. In their
`
`negotiations, both parties understood that while the New Agreement
`
`initially would be executed between New Balance and PSG, a new
`
`entity -- Superdeporte -- would be incorporated and would, once
`
`operational, replace PSG as the distributor of New Balance products
`
`in Peru.
`
`Meanwhile, as neither PSG nor New Balance gave notice of
`
`an intention to let the original Distribution Agreement expire on
`
`December 31, 2015, the agreement renewed by its terms until
`
`December 31, 2016.
`
`In May 2016, Superdeporte was ready to begin operations.
`
`Believing that it had reached agreement with New Balance on the
`
`New Agreement -- and that, accordingly, the New Agreement was
`
`binding on both parties -- PSG informed New Balance that
`
`Superdeporte was ready to distribute New Balance products in Peru
`
`and sought New Balance's agreement to modify the New Agreement to
`
`substitute Superdeporte for PSG as its Peruvian distributor.
`
`
`this arrearage, that dispute is not material to this appeal, which
`does not turn on the merits of the underlying claims and
`counterclaims in the arbitration.
`
`- 5 -
`
`

`

`In response, New Balance denied that it had ever
`
`concluded the New Agreement with either PSG or Superdeporte.
`
`Shortly thereafter, New Balance gave notice that it would not
`
`continue the distribution relationship with either PSG or
`
`Superdeporte beyond the Distribution Agreement's expiration on
`
`December 31, 2016. Instead, it would be using a different Peruvian
`
`distributor, Deportes Sparta.
`
`B. The Assignments to Ribadeneira
`
`In November 2016, shortly before the extended expiration
`
`of the Distribution Agreement, PSG and Superdeporte each executed
`
`assignment agreements with Ribadeneira that transferred to him any
`
`legal claims they had against New Balance arising from the New
`
`Agreement and the negotiations surrounding it. The assignment
`
`agreements contained language stating that PSG and the principals
`
`of Superdeporte had engaged in negotiations with New Balance
`
`regarding a new distribution agreement, but that, "once the
`
`contractual terms were agreed and the contract ready to be
`
`executed," New Balance announced that it would work with another
`
`distributor in Peru, leading to "a dispute" between New Balance,
`
`on the one side, and PSG and Superdeporte, on the other. The
`
`assignment agreement with each company then provided for the
`
`transfer to Ribadeneira of "all [their] rights in attention to the
`
`dispute . . . against [New Balance], before judicial and
`
`administrative authorities," thus allowing Ribadeneira to bring
`
`- 6 -
`
`

`

`legal actions against New Balance to vindicate these rights "in
`
`Peru and anywhere else in the world."
`
`C. Litigation in Peru
`
`In January 2017, as PSG and Superdeporte's assignee
`
`under the assignment agreements, Ribadeneira sued New Balance in
`
`a Peruvian court, asserting two claims of civil liability (the
`
`"Peru Claims"): (1) that the New Agreement was an enforceable
`
`contract, which New Balance had breached; and (2) that, in the
`
`alternative, even if the New Agreement was never validly executed,
`
`New Balance had violated its precontractual duty to negotiate with
`
`PSG and Superdeporte in good faith.
`
`The following month, Ribadeneira moved ex parte for an
`
`injunction restraining New Balance from using any distributor in
`
`Peru other than Superdeporte. The Peruvian court granted this
`
`relief ("the Peru injunction") in December 2017, thereby
`
`compelling New Balance to suspend its distribution relationship
`
`with Deportes Sparta. The Peru injunction was lifted by the court
`
`in July 2018 after New Balance had an opportunity to contest it.4
`
`D. The Arbitration Proceedings
`
`Later in July 2018, New Balance initiated arbitration
`
`proceedings against PSG and Ribadeneira in Boston, Massachusetts,
`
`
`4 The Peruvian court dissolved the injunction apparently based
`on its determination that New Balance and PSG no longer had any
`distribution agreement in effect.
`
`- 7 -
`
`

`

`seeking compensation for allegedly unpaid fees under the
`
`Distribution Agreement. In support of the tribunal's jurisdiction
`
`over Ribadeneira, New Balance argued that, as PSG's assignee,
`
`Ribadeneira had taken its place under the Distribution Agreement.
`
`Responding to New Balance's notice of arbitration in
`
`September 2018, Ribadeneira objected to the arbitrator's
`
`jurisdiction over him because he was a nonsignatory of the
`
`Distribution Agreement. He also argued that since PSG had only
`
`assigned him its claims in relation to the New Agreement, his
`
`status as assignee could not bind him to arbitrate New Balance's
`
`claim that PSG had breached the original Distribution Agreement.
`
`In an amended response filed the following month, PSG asserted a
`
`counterclaim alleging that New Balance itself had breached the
`
`Distribution Agreement by refusing to accept orders from PSG by
`
`letters of credit.
`
`In January 2019, New Balance moved to compel PSG and
`
`Ribadeneira to arbitrate the Peru Claims, arguing both that the
`
`arbitration clause in the Distribution Agreement encompassed the
`
`Peru Claims, and that the arbitrator had jurisdiction over
`
`Ribadeneira. PSG and Ribadeneira opposed the motion, contesting
`
`the arbitrability of the Peru Claims and arbitral jurisdiction
`
`over Ribadeneira.
`
`The arbitrator granted New Balance's motion to compel
`
`arbitration in March 2019, ruling that both of the Peru Claims
`
`- 8 -
`
`

`

`were subject to arbitration, and that Ribadeneira could be
`
`compelled to arbitrate them.
`
`Two months later, on May 2, 2019, Ribadeneira executed
`
`new assignment agreements with PSG and Superdeporte that assigned
`
`back to them the rights they had previously transferred to him.
`
`The following day, New Balance filed an amended notice
`
`of arbitration, adding Superdeporte as a respondent in New
`
`Balance's claim for breach of the Distribution Agreement. New
`
`Balance also added a claim against PSG, Ribadeneira, and
`
`Superdeporte (collectively, the "arbitration respondents")
`
`alleging that, by obtaining the Peru injunction based on
`
`misrepresentations, they had tortiously interfered with its
`
`distribution agreement with Deportes Sparta.
`
`In a response filed on May 17, 2019, Ribadeneira and
`
`Superdeporte objected to arbitral jurisdiction over them as to New
`
`Balance's breach of contract claim because neither of them were
`
`signatories of the Distribution Agreement. The arbitration
`
`respondents also denied that New Balance's tortious interference
`
`claim was arbitrable.
`
`On May 31, 2019, the arbitration respondents moved for
`
`summary disposition. Ribadeneira asserted that the tribunal
`
`lacked jurisdiction over him entirely. He argued that he was not
`
`bound to arbitrate New Balance's breach of contract claim because
`
`he was neither a party to the Distribution Agreement nor to the
`
`- 9 -
`
`

`

`New Agreement. He also reiterated that he was not obligated to
`
`arbitrate the Peru Claims, because he had transferred the rights
`
`underlying the Peru Claims back to PSG and Superdeporte. The
`
`arbitration respondents also challenged the arbitrability of New
`
`Balance's tortious interference claim, insisting that any claim
`
`for damages arising from the Peru injunction could only be
`
`adjudicated by the Peruvian court itself.
`
`In August 2019, the arbitrator denied the arbitration
`
`respondents' motion for summary disposition. With respect to the
`
`tortious interference claim, the arbitrator ruled that the
`
`Distribution Agreement's arbitration clause was broad enough to
`
`embrace that claim, because the Peruvian litigation underlying
`
`that claim implicated the "relationship" between the parties -- or
`
`more specifically the breakdown of that relationship. Moreover,
`
`because it was Ribadeneira who had requested the Peru injunction,
`
`arbitral jurisdiction over the tortious interference claim
`
`entailed jurisdiction over him with respect to that claim,
`
`notwithstanding the new assignment agreements by which he assigned
`
`back to PSG and Superdeporte the rights they had previously
`
`assigned to him. As for the tribunal's jurisdiction over
`
`Ribadeneira with respect to New Balance's breach of contract claim,
`
`the arbitrator recognized that because PSG -- but not Ribadeneira
`
`-- was a party to the original Distribution Agreement, ordinarily
`
`Ribadeneira would not be subject to that contract's arbitration
`
`- 10 -
`
`

`

`clause. However, the arbitrator deferred ruling on whether summary
`
`disposition was warranted on that issue until the close of
`
`discovery, given that evidence could yet emerge to support piercing
`
`the corporate veil to attribute PSG's potential liability to
`
`Ribadeneira, which would support Ribadeneira's joinder as a
`
`respondent.
`
`After discovery closed on November 15, 2019, the
`
`arbitration respondents filed a renewed motion for summary
`
`disposition to address this deferred issue. They contended that,
`
`because no evidence had emerged to support a veil-piercing theory
`
`of Ribadeneira's liability for PSG's alleged breach of the
`
`Distribution Agreement, he was not obliged to arbitrate that claim.
`
`They further argued that because Superdeporte was not a party to
`
`the Distribution Agreement, it was not required to arbitrate New
`
`Balance's claim for breach of that agreement.
`
`In December 2019, the arbitration respondents filed
`
`another amendment to their response to assert two additional
`
`counterclaims. These counterclaims, brought by PSG and
`
`Superdeporte against New Balance, alleged what were, in essence,
`
`the Peru Claims. Specifically, the first counterclaim alleged
`
`that New Balance had breached the New Agreement -- which they
`
`insisted was a legally binding contract between New Balance, PSG,
`
`and Superdeporte -- by discontinuing its distribution relationship
`
`with PSG and Superdeporte after 2016. The second counterclaim
`
`- 11 -
`
`

`

`contended, in the alternative, that New Balance had breached its
`
`precontractual obligation under Massachusetts law to negotiate the
`
`New Agreement in good faith. PSG also reiterated its counterclaim
`
`against New Balance alleging breach of the Distribution Agreement.
`
`The arbitration respondents' second amended response
`
`also renewed Ribadeneira's objection to the arbitrator's
`
`jurisdiction over him, pointing to the absence of evidence to
`
`support piercing PSG's corporate veil and the new assignment
`
`agreements by which he had assigned back to PSG and Superdeporte
`
`the right to pursue the Peru Claims.
`
`
`
`Arbitration hearings were held in March and May 2020.
`
`The arbitration respondents submitted a post-hearing brief in
`
`which they maintained their objection to the arbitrator's
`
`jurisdiction over Ribadeneira and Superdeporte as to New Balance's
`
`claim for breach of the original Distribution Agreement.
`
`E. The Arbitrator's Partial Final Award & Final Award
`
`On August 20, 2020, the arbitrator issued a Partial Final
`
`Award, finding for New Balance on its claim that PSG had breached
`
`the Distribution Agreement, and -- on the theory that Superdeporte
`
`was PSG's successor-in-interest -- holding PSG and Superdeporte
`
`jointly liable for the $826,102.60 in damages awarded.5
`
`
`5 Because the arbitrator declined to pierce the corporate veil
`to hold Ribadeneira liable for PSG's conduct, he did not impose
`liability on Ribadeneira for breach of the Distribution Agreement.
`
`- 12 -
`
`

`

`The arbitrator also agreed with New Balance that
`
`Ribadeneira had tortiously interfered with its agreement with
`
`Deportes Sparta by seeking and obtaining the Peru injunction.
`
`Determining that the assignment of rights from PSG and Superdeporte
`
`to Ribadeneira "created principal-agent relationships rendering
`
`the principals as well as the agent responsible," he imposed
`
`liability for tortious interference not only on Ribadeneira but
`
`also on PSG and Superdeporte, holding all three jointly liable for
`
`$215,736.71 in damages. The arbitrator also rejected PSG's
`
`counterclaim alleging breach by New Balance of the Distribution
`
`Agreement, as well as the two counterclaims brought against New
`
`Balance by PSG and Superdeporte. In rejecting PSG and
`
`Superdeporte's counterclaim alleging that New Balance had breached
`
`the New Agreement, the arbitrator determined that the New Agreement
`
`never became an enforceable contract.6
`
`Pending further proceedings, the arbitrator reserved a
`
`further decision on the calculation of interest on the contractual
`
`damages and the award of reasonable attorney's fees and expenses,
`
`inviting the parties to submit briefing on these issues.
`
`
`6 The arbitrator rejected PSG's counterclaim because he
`concluded that New Balance did not breach the Distribution
`Agreement. He rejected PSG and Superdeporte's counterclaim
`alleging that New Balance had violated its obligation of good faith
`in the contract negotiation process because he found no evidence
`that New Balance had negotiated in bad faith.
`
`- 13 -
`
`

`

`Following the issuance of the Partial Final Award, the
`
`arbitration respondents filed a request under the UNCITRAL
`
`Arbitration Rules for an explanation of the legal basis for
`
`arbitral jurisdiction over Ribadeneira and Superdeporte, insisting
`
`that the arbitrator lacked jurisdiction over these two respondents
`
`to arbitrate "any claims."
`
`In a memorandum and order issued on November 4, 2020,
`
`the arbitrator declined to modify or expand his discussion or
`
`conclusions in the Partial Final Award. He reiterated that
`
`Superdeporte was subject to his jurisdiction as to New Balance's
`
`breach of contract claim because Superdeporte was PSG's "business
`
`successor." He also explained, restating the reasoning in the
`
`Partial Final Award, that he had exercised jurisdiction over all
`
`three arbitration respondents as to the tortious interference
`
`claim because Ribadeneira had sought and obtained the underlying
`
`injunction in Peru pursuant to assignments of rights from PSG and
`
`Superdeporte.
`
`The Final Award issued on February 11, 2021, awarding
`
`contractual interest on New Balance's breach of contract claim,
`
`and allowing New Balance to recover attorney's fees and expenses.
`
`The arbitrator also increased the principal amount of damages on
`
`the contract claim. A provision in the Final Award stated that
`
`the award was made "in full settlement of all claims and
`
`counterclaims submitted to this Arbitration."
`
`- 14 -
`
`

`

`F. Litigation in U.S. District Court
`
`On February 1, 2021, shortly before the issuance of the
`
`Final Award, appellees Ribadeneira and Superdeporte filed a motion
`
`in the U.S. District Court for the District of Massachusetts,
`
`asking the court to vacate the Partial Final Award under Section
`
`10(a)(4) of the Federal Arbitration Act ("FAA") because the
`
`arbitral tribunal lacked jurisdiction over them. On February 22,
`
`2021, following the issuance of the Final Award, appellees filed
`
`an amended motion seeking to vacate both the Partial Final Award
`
`and the Final Award. Appellees again contended that vacatur was
`
`appropriate because the arbitrator had exceeded his authority in
`
`exercising jurisdiction over them.
`
`Opposing appellees' amended motion, New Balance filed a
`
`motion to dismiss and a cross-motion to confirm the arbitration
`
`awards. New Balance set forth three arguments in support of its
`
`motions: (1) appellees' amended motion was time-barred regardless
`
`of whether the Massachusetts Uniform Arbitration Act ("MUAA") or
`
`the FAA applied; (2) Superdeporte had waived any argument that the
`
`arbitrator lacked jurisdiction over it by raising its
`
`jurisdictional objection too late; and (3) while appellees were
`
`not parties to the Distribution Agreement, they were nevertheless
`
`subject to the arbitrator's jurisdiction under theories of
`
`assumption and equitable estoppel.
`
`- 15 -
`
`

`

`The district court denied New Balance's motion to
`
`dismiss, agreeing with the appellees that their amended motion was
`
`not time-barred. The court first determined that the FAA's three-
`
`month deadline for filing a motion to vacate applied, see 9 U.S.C.
`
`§ 12, despite the choice-of-law provision in the Distribution
`
`Agreement stipulating that "[t]he arbitrator shall determine the
`
`matters in dispute" according to Massachusetts law. Reasoning
`
`that this choice-of-law provision only specified the law to be
`
`applied in arbitration proceedings, rather than in court
`
`challenges to the enforcement of arbitration awards, the district
`
`court concluded that there was no explicit agreement to displace
`
`the FAA in favor of state law. Accordingly, the FAA's three-month
`
`deadline governed. The court went on to conclude that this three-
`
`month period only began to run when the arbitrator issued the Final
`
`Award, not the Partial Final Award, because the arbitrator did not
`
`intend for the Partial Final Award to resolve all claims before
`
`him. Hence, given that appellees filed their amended motion to
`
`vacate within ninety days of the issuance of the Final Award, the
`
`district court found that it had been timely filed.
`
`The district court also granted the appellees' amended
`
`motion to vacate the arbitration awards. On the waiver issue, the
`
`court determined that Superdeporte's jurisdictional objection was
`
`preserved because Superdeporte had objected to jurisdiction prior
`
`to the arbitration hearing. On the merits of appellees'
`
`- 16 -
`
`

`

`jurisdictional challenge, the court concluded that the arbitrator
`
`lacked jurisdiction over both Ribadeneira and Superdeporte as
`
`nonsignatories of the Distribution Agreement, and that neither
`
`principles of assumption nor of equitable estoppel overcame their
`
`nonsignatory status. Accordingly, the court ruled that appellees
`
`were not obligated to arbitrate.
`
`New Balance timely appealed.
`
`II.
`
`Before evaluating the merits of the district court's
`
`decision to vacate the challenged arbitration awards for lack of
`
`arbitral jurisdiction over appellees, we first address these
`
`threshold issues: whether appellees' amended motion to vacate was
`
`timely filed, and, if so, whether Superdeporte waived its
`
`jurisdictional challenge to the arbitration awards.
`
`A. Timeliness of Appellees' Motion to Vacate
`
`New Balance argues that the two choice-of-law provisions
`
`in the Distribution Agreement together demonstrate that the
`
`parties intended for Massachusetts law -- rather than the FAA --
`
`to govern all aspects of the arbitration process, including the
`
`deadline for seeking judicial review of any arbitration award.
`
`Under the MUAA, a party seeking to vacate an arbitration award
`
`must file an application to vacate the award "within thirty days
`
`after delivery of a copy of the award." Mass. Gen. Laws ch. 251,
`
`§ 12(b). This period begins to run upon "the delivery of the
`
`- 17 -
`
`

`

`arbitration award," not the issuance of the "final decision."
`
`Maltz v. Smith Barney, Inc., 694 N.E.2d 840, 842 n.8 (Mass. 1998).
`
`Since appellees' initial motion to vacate and amended motion were
`
`filed on February 1, 2021, and February 22, 2021, respectively --
`
`significantly more than thirty days after the Partial Final Award
`
`was issued on August 20, 2020 -- New Balance contends that
`
`appellees' amended motion is time-barred to the extent that it
`
`seeks to vacate the liability and damages determinations made in
`
`the Partial Final Award.
`
`While parties to an arbitration contract "may
`
`contemplate enforcement under state statutory or common law"
`
`rather than the FAA, Hall St. Assocs. v. Mattel, Inc., 552 U.S.
`
`576, 590 (2008), we have emphasized that "FAA displacement . . .
`
`can occur 'only if the parties have so agreed explicitly.'"
`
`Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 932 F.3d 1, 7
`
`(1st Cir. 2019) (quoting Ortiz-Espinosa v. BBVA Secs. of P.R.,
`
`Inc., 852 F.3d 36, 42 (1st Cir. 2017), abrogated on other grounds
`
`by Badgerow v. Walters, 142 S. Ct. 1310 (2022)). As such, the
`
`"mere inclusion of a generic choice-of-law clause within the
`
`arbitration agreement is not sufficient . . . to support a finding
`
`that contracting parties intended to opt out of the FAA's default
`
`regime for vacatur of arbitral awards." Id. at 8 (quoting P.R.
`
`Tel. Co. v. U.S. Phone Mfg. Corp., 427 F.3d 21, 29 (1st Cir. 2005),
`
`abrogated on other grounds by Hall St. Assocs., 552 U.S. 576).
`
`- 18 -
`
`

`

`To support its argument that the MUAA rather than the
`
`FAA applies, New Balance relies on the choice-of-law provisions in
`
`Sections 20 and 21 of the Distribution Agreement. Neither of these
`
`provisions, however, indicates sufficiently explicit agreement to
`
`displace the FAA's enforcement regime in favor of the MUAA.
`
`Section 20, which provides that the Distribution
`
`Agreement "shall be governed by and construed in accordance with"
`
`Massachusetts law, is the kind of generic choice-of-law provision
`
`we have previously held insufficient for FAA displacement. It
`
`closely matches, for example, a choice-of-law provision
`
`instructing that a contract was to "be construed in accordance
`
`with the internal substantive laws of the Commonwealth of Puerto
`
`Rico" that we determined to be insufficient to effectuate FAA
`
`displacement. See Dialysis Access Ctr., 932 F.3d at 7-8.
`
`The provision in Section 21 requiring the arbitrator to
`
`"determine the matters in dispute" according to Massachusetts law
`
`likewise does not demonstrate the parties' specific intention to
`
`displace the FAA enforcement regime. As the district court
`
`correctly observed, this provision "refers only to the law the
`
`arbitrator will apply when deciding matters in dispute."
`
`Ribadeneira v. New Balance Athletics, Inc., No. 21-cv-10173-ADB,
`
`2021 WL 4419943, at *5 (D. Mass. Sept. 27, 2021). It does not
`
`- 19 -
`
`

`

`contemplate the application of Massachusetts law to actions in a
`
`judicial forum to enforce or vacate arbitration awards.7
`
`We therefore conclude that the district court correctly
`
`applied the FAA's deadline, which requires notice of a motion to
`
`vacate an arbitration award to be filed "within three months after
`
`the award is filed or delivered." 9 U.S.C. § 12.
`
`New Balance contends that, even accounting for the FAA's
`
`three-month deadline, appellees' amended motion was still untimely
`
`because it was filed more than three months after the arbitrator
`
`issued the Partial Final Award. To address this claim, we begin
`
`with the principle that, in actions seeking to set aside an
`
`arbitration award under Section 10(a)(4) of the FAA, "[i]t is
`
`essential for the district court's jurisdiction that the
`
`arbitrator's award was final, not interlocutory." Hart Surgical,
`
`Inc. v. Ultracision, Inc., 244 F.3d 231, 233 (1st Cir. 2001)
`
`(alteration in original) (quoting El Mundo Broad. Corp. v. United
`
`Steelworkers of Am., AFL-CIO CLC, 116 F.3d 7, 9 (1st Cir. 1997)).
`
`
`7 Where courts have found FAA displacement, the choice-of-law
`provisions at issue have been much more explicit in requiring the
`application of state law in the enforcement of arbitration awards
`or in proceedings beyond the arbitration itself. See, e.g.,
`Foulger-Pratt Residential Contracting, LLC v. Madrigal Condos.,
`LLC, 779 F. Supp. 2d 100, 110 (D.D.C. 2011) (clause making an
`arbitration agreement "specifically enforceable pursuant to . . .
`the laws of the District of Columbia"); Ga. Cas. & Sur. Co. v.
`Excalibur Reinsurance Corp., 4 F. Supp. 3d 1362, 1364, 1369 (N.D.
`Ga. 2014) (clause providing that "all proceedings pursuant [to the
`arbitration provision] shall be governed by the law of the state").
`
`- 20 -
`
`

`

`The "familiar finality standard" is that "[n]ormally, an arbitral
`
`award is deemed 'final' provided it evidences the arbitrators'
`
`intention to resolve all claims submitted in the demand for
`
`arbitration." Univ. of Notre Dame (USA) in Eng. v. TJAC Waterloo,
`
`LLC, 861 F.3d 287, 291 (1st Cir. 2017) (quoting Hart Surgical, 244
`
`F.3d at 233).
`
`As an exception to this general rule, a partial award
`
`may qualify as final "when the arbitrating parties have . . .
`
`agreed to litigate [the issues] in separate, independent stages."
`
`Id. This agreement to bifurcate proceedings may be "informal."
`
`Id. (citing Providence J. Co. v. Providence Newspaper Guild, 271
`
`F.3d 16, 19-20 (1st Cir. 2001)). Whether an agreement -- including
`
`an agreement that was "never formally stated" -- to bifurcate
`
`proceedings may be found depends on whether the parties "had
`
`expressed an intent to bifurcate." Providence J., 271 F.3d at 19-
`
`20.
`
`Here, as the district court also concluded, there is no
`
`evidence that the parties to the arbitration manifested any
`
`intention to divide the proceedings into two parts. See
`
`Ribadeneira, 2021 WL 4419943, at *6. The exception covering
`
`bifurcated arbitration proceedings therefore does not apply.
`
`Accordingly, the Partial Final Award qualifies as "final" for
`
`purposes of starting the FAA's three-month clock only if it reveals
`
`the arbitrator's intention to settle all claims before him.
`
`- 21 -
`
`

`

`We discern no such intention. In issuing the Partial
`
`Final Award, the arbitrator indicated that he was "retain[ing]
`
`jurisdiction" and "re-open[ed] the hearings for written
`
`submissions" on issues including the calculation of contractual
`
`interest and the award of attorney's fees and expenses. The issue
`
`of contractual interest, as the arbitrator later explained in the
`
`Final Award, was "a subject of New Balance's contractual claim."
`
`While the arbitrator described the awards made in the Partial Final
`
`Award as "preliminary," he stated that the Final Award was "in
`
`full settlement of all claims and counterclaims submitted to this
`
`Arbitration."
`
`We therefore conclude that only the Final Award was a
`
`"final" arbitration award that the district court had jurisdiction
`
`to review. Accordingly, the FAA's three-month deadline is measured
`
`from the date that the Final Award issued, namely February 11,
`
`2021. Since appellee's amended motion to vacate was filed on
`
`February 22, 2021, it was timely.
`
`B. Waiver of Superdeporte's Jurisdictional Challenge
`
`New Balance contends that Superdeporte waived its right
`
`to challenge the arbitrator's jurisdiction, offering two
`
`arguments. First, New Balance maintains that Superdeporte only
`
`raised a sufficient objection to arbitral jurisdiction after the
`
`arbitrator had made a decision on the merits. This objection was
`
`thus waived because it came too late. Second, New Balance urges
`
`- 22 -
`
`

`

`that even if Superdeporte's earlier jurisdictional objections,
`
`made in May 2019, were sufficient, it abandoned these objections
`
`when it (along with PSG) asserted counterclaims before the
`
`arbitrator in December 2019 without contemporaneously renewing its
`
`jurisdictional challenge. We examine these arguments in turn.
`
`1. Timing of Initial Objection
`
`Because "[f]ede

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