Arbitration

• Pages: 86-87

Page 86

In October, 2004 Sourcing Unlimited, Inc, d/b/a Jumpsource (Plaintiff), a Massachusetts corporation, entered into a written partnership agreement (Agreement) with Asimco Technologies, Inc. (ATL), a Delaware corporation headquartered in China. John Perkowski, the Chairman and CEO of ATL, was also Chairman of Asimco International, Inc. (Asimco). Michael Porter, the CEO Plaintiff , and Wilson Ni, President of ATL, signed the Agreement. Neither Asimco nor any other of ATL's subsidiaries did so.

The Agreement contained an arbitration clause and a choice-of-law clause that stated: "This agreement shall be governed by, and construed in accordance with, the laws of the P.R. China, without regard to confl icts of laws principles thereof. Any action to enforce, arising out of, or relating in any way to, any of the provisions of this agreement shall be brought in front of a P.R. China arbitration body." [Slip Op. 1-2] After disputes arose with ATL, Plaintiff fi led suit in a Massachusetts Court in June 2007. The complaint named only Asimco and Perkowski as Defendants, and claimed that Plaintiff had entered into an oral contract with Perkowski.

Defendants next removed the case to the Massachusetts federal court. Defendants moved to dismiss, arguing that the complaint failed to state valid claims and calling for dismissal in favor of arbitration based on the Federal Arbitration Act (FAA), 9 U.S.C. §§ 201-208, which implements the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), Sept. 30, 1970, 21 U.S.T. 2517; T. I. A. S. No. 6997, reprinted at 9 U.S.C.A. § 201 at 511 (West 1999).

"[Defendant]'s motion argued that the arbitration clause in the Jump source-ATL contract was subject to [FAA] Chapter 2 and the New York Convention because (1) there was a written arbitration agreement; (2) the agreement provided for arbitration in the territory of a signatory to the Convention; (3) the agreement arose in a commercial relationship; and (4) the commercial relationship is related with [sic] a foreign state."

Defendants countered that the oral agreement between Plaintiff and Perkowski was a modifi cation of the written Agreement and that Plaintiff should not be able to evade the arbitration clause by suing Asimco and Perkowski. Defendants asked the court to dismiss the complaint in favor of arbitration. Plaintiff replied that the oral agreement constituted a separate contract not subject to the arbitration...