Garthon Business Inc., et al., Respondents,v.Kirill Ace Stein, et al., Appellants.BriefN.Y.September 12, 2017To Be Argued By: AARON SIRI Time Requested 30 Mirrutes APL-2016-00097 New York County Clerk's Index No. 653715/14 Olnurt nf J\pp.eals STATE OF NEW YORK ..... GARTHON BUSINESS INC. and CRESTGUARD LIMITED, Plaintiffs-Respondents, -against- KIRILL ACE STEIN and AURDELEY ENTERPRISES LIMITED, Defendants-Appellants. REPLY BRIEF FOR DEFENDANT-APPELLANT AURDELEY ENTERPRISES LIMITED December 22, 2016 AARON SIRI MASON BARNEY SIRI & GLIMSTAD LLP 200 PaTk Avenue, 17th Floor New York, New York 10166 Telephone: (212) 532-1091 Facsimile: (646) 417-5967 Attorneys for Defendant-Appellant Aurdeley Enterprises Limited ii TABLE OF CONTENT PRELIMINARY STATEMENT .............................................................................. 1 ARGUMENT ............................................................................................................ 3 I. THE STANDARD OF REVIEW IS DE NOVO RATHER THAN ABUSE OF DISCRETION. ........................................................................... 3 II. THE PARTIES GRANTED THE ARBITRATORS THE SOLE RIGHT TO INTERPRET THE LATER AGREEMENTS AND TO RULE ON QUESTIONS OF ARBITRABILITY. ......................................... 4 1. The Agreements Manifested the Clear and Unmistakable Intent to Delegate Questions About Arbitrability to the Arbitrators. .................... 5 i. Incorporating Arbitration Rules Into a Broad Arbitration Clause Satisfies the Clear and Unmistakable Standard. ............................. 5 ii. The LCIA Rules Grant the Arbitrators Authority to Rule on Questions About Arbitrability ......................................................... 7 iii. The Arbitration Provisions are Broad Enough to Establish the Parties’ Clear and Unmistakable Intent ........................................... 8 2. The Forum Selection Clause in Agreement 1 Does Not Limit the Arbitrators’ Authority. .......................................................................... 10 i. Only the Arbitrators can Interpret the Termination Provisions and Decide if They Nullify the Forum Selection Clause. ............. 10 ii. Defering the Question of Arbitrability to the Arbitrators is not Inconsistent With the Forum Selection Clause ............................. 11 iii. The Timing of Plaintiffs-Respondents’ Claims Does Not Affect the Arbitrators’ Authority to Rule on Those Claims’ Arbitrability ................................................................................... 12 iv. New York Case Law Supports the Arbitrators’ Authority to Rule on Questions About Arbitrability. ................................................. 13 iii III. THE COURT SHOULD RESPECT PARTIES’ CHOICE TO APPLY ENGLISH LAW. .......................................................................................... 17 1. Defendants-Appellants Consistently Asserted that English Law Governs Agreement 4 and the Termination Agreement. ...................... 17 2. The Court Should Apply English Law to Interpret the Arbitration Provisions. ............................................................................................. 17 3. English Law Establishes that Plaintiffs-Respondents’ Claims Must be Submitted to Arbitration. ........................................................ 20 IV. EVEN IF NEW YORK LAW CONTROLS, PLAINTIFFS- RESPONDENTS’ CLAIMS MUST BE ARBITRATED. ........................... 23 1. Public Policy Unequivocally Favors Arbitration of Plaintiffs- Respondents’ Claims. ........................................................................... 23 2. Plaintiffs-Respondents Fail to Show that the Forum Selection Clause Survived Agreement 1’s Termination. ...................................... 24 3. Plaintiffs-Respondents’ Claims Must Be Arbitrated Pursuant to Agreement 4. ......................................................................................... 29 CONCLUSION ....................................................................................................... 31 iv TABLE OF AUTHORITIES CASES Anselmo v. Univision Sta. Group, Inc., No. 92 CIV. 1471 (RLC), 1993 WL 17173 (S.D.N.Y. Jan. 15, 1993) ................ 30 Applied Energetics, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522 (2d Cir. 2011) .................................................................... 26, 27, 28 Argus Media Ltd. v. Tradition Fin. Services Inc., No. 09 Civ. 7966(HB), 2009 WL 5125113 (S.D.N.Y. Dec. 29, 2009) ............... 13 Bangkok Crafts Corp. v. Capitolo di San Pietro in Vaticano, 331 F. Supp. 2d 247 (S.D.N.Y. 2004) ................................................................. 30 Bank Julius Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d 278 (2d Cir. 2005) .................................................................... 25, 27, 29 Bd. of Ed. of Lakeland Cent. School Dist. of Shrub Oak v. Barni, 49 N.Y.2d 311 (1980) .......................................................................................... 11 Biremis, Corp. v. Merrill Lynch, Pierce, Fenner & Smith Inc., CV-11-4934 LDW, 2012 WL 760564 (E.D.N.Y. Mar. 8, 2012) ........................ 29 Brenner v. National Outdoor Leadership School, 20 F. Supp. 3d 709 (D. Minn. 2014) ................................................................... 19 Brooke Group Ltd. v. JCH Syndicate 488, 87 N.Y.2d 530 (1996) .......................................................................................... 19 Contec Corp. v. Remote Sol., Co., Ltd., 398 F.3d 205 (2d Cir. 2005) ................................................................................ 15 Cooper v. Ateliers de la Motobecane, S.A., 57 N.Y.2d 408 (1982) .......................................................................................... 23 E & B Giftware, LLC v. Kinsbourne, No. 14-CV-4709, 2015 WL 2330469 (S.D.N.Y. May 12, 2015) ...................... 8, 9 Gen. Motors Corp. v. Fiat S.p.A., 678 F. Supp. 2d 141 (S.D.N.Y. 2009) ........................................................... 15, 16 v Goldman, Sachs & Co. v. Golden Empire Schools Fin. Auth., 764 F.3d 210 (2d Cir. 2014) .......................................................................... 26, 28 In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113 (2d Cir. 2011) .......................................................................... 15, 16 In re Arbitration Between Ayco Co., L.P., 3 A.D.3d 635 (3d Dep’t 2004) ....................................................................... 23, 24 In re Same Time Holdings Ltd. and Red Bd. Ltd, 12 Misc. 3d 1186(A) (Sup. Ct. N.Y. Cnty. 2006) ......................................... 23, 30 Innospec Ltd. v. Ethyl Corp., No. 3:14-CV-158-JAG, 2014 WL 5460413 (E.D. Va. Oct. 27, 2014) .................. 8 L & R Expl. Venture v. Grynberg, 22 A.D.3d 221 (1st Dep’t 2005) .......................................................................... 23 Lane v. Abel-Bey, 50 N.Y.2d 864 (1980) ............................................................................................ 9 Life Receivables Trust v. Goshawk Syndicate 102 at Lloyd's, 14 N.Y.3d 850 (2010) ........................................................................................ 6, 7 Life Receivables Trust v. Goshawk Syndicate 102 at Lloyd's, 66 A.D.3d 495 (1st Dep’t 2009) ............................................................................ 7 Martinez v. Bloomberg LP, 740 F.3d 211 (2d Cir. 2014) .................................................................... 18, 19, 21 Ministers and Missionaries Ben. Bd. v. Snow, 26 N.Y.3d 466 (2015) .......................................................................................... 17 Mitsubishi Electric Corp. v. Westcode, Inc., 3:15-CV-505(MAD/DEP), 2016 WL 3748023 (N.D.N.Y. July 11, 2016) .............................................................................. 26, 27 Monarch Consulting, Inc. v. Natl. Union Fire Ins. Co. of Pittsburgh, PA, 26 N.Y.3d 659 (2016) ............................................................................................ 4 Monde Petroleum SA v. Westernzagros Ltd, [2015] EWHC 67 (Comm) .................................................................................. 22 vi New York Trans Harbor LLC v. Derektor Shipyards Conn., LLC, 19 Misc. 3d 1134(A) (Sup. Ct. Kings Cnty. 2008) ........................................ 19, 20 Offshore Expl. and Prod. LLC v. Morgan Stanley Private Bank, N.A., 986 F. Supp. 2d 308 (S.D.N.Y. 2013) ....................................................... 9, 14, 27 Oldroyd v. Elmira Sav. Bank, FSB, 134 F.3d 72 (2d Cir. 1998) .................................................................................... 9 Oriental Republic of Uruguay v. Chem. Overseas Holdings, Inc., No. 05 CIV. 6151(WHP), 2006 WL 164967 (S.D.N.Y. Jan. 24, 2006) .............. 13 Pictet Funds (Europe) S.A. v. Emerging Managers Grp., L.P., No. 14-cv-6854 (SAS), 2014 WL 6766011 (S.D.N.Y. Dec. 1, 2014) ................... 9 Primex Intern. Corp. v. Wal-Mart Stores, Inc., 89 N.Y.2d 594 (1997) .................................................................................... 25, 28 PTS Data Center Solutions, Inc. v. RF Code, Inc., No. 2:14–3483 (WJM), 2015 WL 733643 (D.N.J. Feb 20, 2015) ...................... 19 Schlaifer v. Sedlow, 51 N.Y.2d 181 (1980) .......................................................................................... 25 Sebastian Holdings Inc. v. Deutsche Bank AG, [2010] EWCA (Civ) 998 ..................................................................................... 21 Shaw Group Inc. v. Triplefine Intern. Corp., 322 F.3d 115 (2d Cir. 2003) .................................................................................. 6 Singer v. Jefferies & Co., Inc., 78 N.Y.2d 76 (1991) ............................................................................................ 23 Skyline Steel, LLC v. PilePro LLC, 139 A.D.3d 646 (1st Dep’t 2016) .......................................................................... 7 Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d 39 (1997) .............................................................................................. 6 State v. Philip Morris Inc., 30 A.D.3d 26 (1st Dep’t 2006) ............................................................................ 10 vii TAPCO Underwriters, Inc. v. Catalina London Ltd., No. 14-CV-8434 JSR, 2014 WL 7228711 (S.D.N.Y. Dec. 8, 2014) ...... 15, 16, 30 UBS AG v. HSH Nordbank AG, [2009] EWCA (Civ) 585 ............................................................................... 21, 22 Universal Am. Corp. v. Natl. Union Fire Ins. Co. of Pittsburgh, Pa., 25 N.Y.3d 675 (2015) ............................................................................................ 4 USA India Export Import, Inc. v. Coca-Cola Refreshments USA, Inc., 46 Misc. 3d 1215(A) (Sup. Ct. Westchester Cnty. 2015) .................................... 19 Waldron v. Goddess, 61 N.Y.2d 181 (1984) .......................................................................................... 24 WMT Inv'rs, LLC v. Visionwall Corp., 09 CIV. 10509 (RMB), 2010 WL 2720607 (S.D.N.Y. June 28, 2010) ......... 14, 15 Zachariou v. Manios, 68 A.D.3d 539 (1st Dep’t 2009) .......................................................................... 10 OTHER AUTHORITIES Arthur Karger, THE POWERS OF THE NEW YORK COURT OF APPEALS 3D, § 13.6 ...... 4 1 PRELIMINARY STATEMENT In its opening brief, Aurdeley established that: (1) the First Department erred by not ordering the parties to arbitrate the question of whether Plaintiffs- Respondents claims can be arbitrated; (2) the First Department erred by not interpreting the arbitration provisions in Agreement 4 and the Termination Agreement pursuant to English law; and (3) the First Department erred by not compelling Plaintiffs-Respondents to arbitrate their claims because Agreement 4 and the Termination Agreement terminated Agreement 1. Plaintiffs-Respondents’ attempts to attack each of these conclusions are unavailing because they fail to show why this Court should accept the First Department majority’s holding. First, Plaintiffs-Respondents assert that the parties did not intend the arbitrators to rule on the arbitrability of their claims because the “mere reference to the LCIA Rules” in Agreement 4 and the Termination Agreement is insufficient to establish the parties’ clear and unmistakable intent. But, this Court has long held that by incorporating rules such as Article 23.1 of the LCIA Rules into their arbitration provisions, the parties clearly and unmistakably delegated authority to the arbitrators to rule on questions of arbitrability. Furthermore, courts in New York have held that where the parties include an express delegation of authority such as that in Article 23.1, prior forum selection clauses, like the clause in Agreement 1, do not limit that authority. 2 Second, Plaintiffs-Respondents concede that the parties chose English law to govern Agreement 4 and the Termination Agreement. Nevertheless, they attempt to avoid the consequences of this choice by arguing that Defendants-Appellants never previously argued in favor of English law, that a choice-of-law clause does not apply to forum selection clauses, and that even if it does, English law would not affect the outcome. Each of these claims is in error. Defendants-Appellants repeatedly raised the issue of English law before the Supreme Court and Appellate Division. Likewise, this Court should join the Second Circuit in rejecting Plaintiffs- Respondents’ invitation to exempt forum selection clauses from a party’s choice of law. Accepting their invitation would undermine the predictability of the forum selection clauses and could lead to the same words having different meaning in a single agreement. Lastly, where the relevant agreements call for adjudication in different fora, English law requires courts to interpret the agreement in a commercially reasonable way as sensible business people would have intended. Here, no sensible business person would have drafted the arbitration provisions, but then rendered them irrelevant by intentionally failing to supersede the prior forum selection clause. Third, Plaintiffs-Respondents argue that the forum selection clause survived the termination of Agreement 1 because the parties failed to explicitly “obliterate” that clause. But, in making this argument Plaintiffs attempt to set a commercially 3 unreasonable standard that no court has accepted. Courts in New York hold that when a forum selection clause is mandatory and sufficiently broad, as is the case with the arbitration provisions here, it will always supersede an earlier forum selection clause. Furthermore, if there is any doubt about whether Plaintiffs’ claims are within the scope of the arbitration clause, New York’s long standing policy favoring arbitration requires the Court to resolve such doubt in favor of arbitration. For these reasons, the Court should reject Plaintiff-Respondent’s arguments and hold that the First Department erred by reversing the order of the Supreme Court. ARGUMENT I. THE STANDARD OF REVIEW IS DE NOVO RATHER THAN ABUSE OF DISCRETION. Plaintiffs-Respondents assert that this Court may only review the Appellate Order1 for an abuse of discretion. Nevertheless, the issues presented on this appeal are purely legal, therefore, this Court should review the Appellate Order de novo. The dispute between the majority and dissent in the First Department turned on their different interpretations of the arbitration provisions. (Plaintiffs- Respondents’ Brief, dated December 8, 2016 (“Opp.”) at 3 (“The majority’s holding follows from the language of the agreements”); R. 602 (summarizing the dissent’s different interpretation).) The only issue on appeal concerns these differing 1 Terms not defined herein have the meaning given to them in Aurdeley’s Opening Brief. 4 interpretations and “the interpretation of [a contract] presents a question of law fully reviewable by the Court of Appeals.” Arthur Karger, THE POWERS OF THE NEW YORK COURT OF APPEALS 3D, § 13.6; Universal Am. Corp. v. Natl. Union Fire Ins. Co. of Pittsburgh, Pa., 25 N.Y.3d 675, 680 (2015) (the interpretation of a contract is “a question of law for the court”). Therefore, Defendants-Appellants need not establish that the First Department majority abused its discretion. Rather, to succeed, Defendants-Appellants only need to show that the majority’s interpretation of the agreements was inconsistent with New York law. See Monarch Consulting, Inc. v. Natl. Union Fire Ins. Co. of Pittsburgh, PA, 26 N.Y.3d 659, 675 (2016) (reversing the First Department and compelling arbitration because the First Department misinterpreted an arbitration provision).2 II. THE PARTIES GRANTED THE ARBITRATORS THE SOLE RIGHT TO INTERPRET THE LATER AGREEMENTS AND TO RULE ON QUESTIONS OF ARBITRABILITY. The dissenting justices in the First Department did not focus on whether Plaintiffs-Respondents’ substantive claims should be decided by a New York judge or by the LCIA arbitrators, rather “[b]efore we reach the parties’ forum dispute, ... the gateway issue is who gets to decide the issue about the proper forum, or 2 To the extent an abuse of discretion standard is appropriate, the issue on appeal is whether the Supreme Court abused its discretion in compelling arbitration, not whether the First Department abused its discretion in reversing the Supreme Court. 5 arbitrability.” (R. 599.) The First Department majority and Plaintiffs-Respondents merged these two issues, arguing that because Section 12 in Agreement 1 (the “Forum Selection Clause”) controls Plaintiffs’ claims, only the court can decide their arbitrability. (R. 81, 591-93.) However, this analysis finds no support in this Court’s jurisprudence concerning arbitrability. Therefore, the First Department erred by not directing the parties to arbitrate whether Plaintiffs’ claims are arbitrable. 1. The Agreements Manifested the Clear and Unmistakable Intent to Delegate Questions About Arbitrability to the Arbitrators. Plaintiffs-Respondents assert “that the mere reference to the LCIA Rules in Agreement 3, Agreement 4 and the Termination Agreement” does not “constitute[] clear and unmistakable evidence” of the parties’ intent to delegate to the arbitrators the authority to rule on arbitrability, claiming that those agreements contain “no delegation language[.]” To find such a delegation the court must see “clear and unmistakable” evidence of it in the parties’ agreement. Nevertheless, Plaintiffs- Respondents incorrectly conclude that Section 12.2 in Agreement 4 and the arbitration provision in the Termination Agreement (collectively the “Arbitration Provisions”) fail to meet this standard. (R. 111, 116.) i. Incorporating Arbitration Rules Into a Broad Arbitration Clause Satisfies the Clear and Unmistakable Standard. This Court’s holding in Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d 39 (1997) explained the principles for determining the parties’ intent. There, the 6 agreement called for arbitration of “[a]ny controversy arising out of or relating to” the parties’ agreement under the rules of the NASD, which committed “all issues, including issues of arbitrability and timeliness, to the arbitrators.” Id. at 47. This Court held that, combined with the broad arbitration clause, the incorporation of such a rule in the parties’ agreements was “a ‘clear and unmistakable’ expression of their intent to leave the question of arbitrability to the arbitrators[.]” Id. The federal courts apply the same principle when determining the parties’ “clear and unmistakable” intent. See Life Receivables Trust v. Goshawk Syndicate 102 at Lloyd's, 14 N.Y.3d 850, 851 (2010) (citing Second Circuit precedent on this issue); Shaw Group Inc. v. Triplefine Intern. Corp., 322 F.3d 115, 122 (2d Cir. 2003). Therefore, as Plaintiffs-Respondents concede, “it is commonplace for New York state courts to rely on cases from the federal courts regarding arbitration issues.” (Opp. at 29.) Under these principles, courts have found that the rules established by a variety of arbitration organizations provide clear and unmistakable evidence of the intent to delegate arbitrability. E.g., Life Receivables Trust, 14 N.Y.3d at 851 (AAA); Skyline Steel, LLC v. PilePro LLC, 139 A.D.3d 646 (1st Dep’t 2016) (JAMS). 7 ii. The LCIA Rules Grant the Arbitrators Authority to Rule on Questions About Arbitrability Here, the wording of the Arbitration Provisions clearly and unmistakably establishes that the parties delegated the authority to rule on arbitrability to the arbitrators. Both Agreements provide that the LCIA “Rules are deemed to be incorporated by reference into” the agreement. (R. 112, 116.) As such, each one of the LCIA Rules is a part of the agreements as if stated therein verbatim. Article 23.1 of the LCIA Rules provides that “[t]he Arbitral Tribunal shall have the power to rule upon its own jurisdiction and authority, including any objection to the initial or continuing existence, validity, effectiveness or scope of the Arbitration Agreement.” (The LCIA Arbitration Rules (2014).) This provision is substantively the same as Article 15.1 of the AAA rules that this Court has accepted as clear and unmistakable evidence. See Life Receivables Trust v. Goshawk Syndicate 102 at Lloyd's, 66 A.D.3d 495, 496 (1st Dep’t 2009), affd, 14 N.Y.3d 850 (2010) (Article 15.1 provides that “[t]he tribunal shall have the power to rule on its own jurisdiction, including objections with respect to the existence, scope or validity of the arbitration agreement”). Similarly, courts outside New York have found that LCIA Article 23.1 “meets the ‘clear and unmistakable’ standard.” Innospec Ltd. v. Ethyl Corp., No. 3:14-CV-158-JAG, 2014 WL 5460413, at *3-4 (E.D. Va. Oct. 27, 2014). 8 iii. The Arbitration Provisions are Broad Enough to Establish the Parties’ Clear and Unmistakable Intent Despite Article 23.1’s language, the First Department majority erroneously refused to find evidence of a clear and unmistakable intent to delegate arbitrability to the arbitrators, in part because “the arbitration clauses ... are far narrower” than the Forum Selection Clause. (R. 593.) Plaintiffs-Respondents echoed this assertion throughout their opposition. In contrast, the dissenting justices focused on the language of the Arbitration Provisions and found them “sufficiently broad” to allow the arbitrators to decide the issue of arbitrability. (R. 601.) The dissenting justices’ interpretation accurately reflects this Court’s prior holdings that the arbitration provision only needs to be sufficiently broad enough to show that the parties intended all disputes concerning that agreement to be arbitrated. Plaintiffs-Respondents and the First Department majority focused on the Arbitration Provisions’ use of the term “this Agreement” to call the provision narrow. But, the dissenting justices correctly focused on the words that come before “this Agreement” to determine the breadth of those Provisions. (R. 601.) On this point the discussion in E & B Giftware, LLC v. Kinsbourne, No. 14-CV-4709, 2015 WL 2330469 (S.D.N.Y. May 12, 2015), is instructive. There the court collected cases that distinguish between two types of arbitration clauses: (1) broad arbitration clauses that designate “disputes arising ‘in connection with’ or ‘relating to’ the contract as arbitrable;” and (2) narrow arbitration clauses that “confine arbitrable 9 issues to only those ‘arising under’ the contract.” E & B Giftware’s distinction is consistent with this Court’s determination that the phrase “in connection with” creates “a broad arbitration clause.” Lane v. Abel-Bey, 50 N.Y.2d 864, 865 (1980) (“the agreement contained a broad arbitration clause ‘All disputes arising in connection with this agreement shall be finally settled by arbitration’”); see also Oldroyd v. Elmira Sav. Bank, FSB, 134 F.3d 72, 76 (2d Cir. 1998) (stating that an arbitration clause that included “in connection” with was “the prototypical broad arbitration provision”). Here, the Arbitration Provisions fall into the “broad arbitration clause” category discussed in E & B Giftware because they apply to “[a]ny dispute arising out of or in connection with this Agreement[.]” (R. 111, 116 (emphasis added).) As discussed infra, the earlier Forum Selection Clause does not limit the scope of the Arbitration Provisions or give special importance to the “this Agreement” language. See Offshore Expl. and Prod. LLC v. Morgan Stanley Private Bank, N.A., 986 F. Supp. 2d 308, 316 (S.D.N.Y. 2013). In this way, both cases Plaintiffs-Respondents rely on are easily distinguishable. In Pictet Funds (Europe) S.A. v. Emerging Managers Grp., L.P., No. 14-cv-6854 (SAS), 2014 WL 6766011 (S.D.N.Y. Dec. 1, 2014), the agreement narrowly required arbitration for “a dispute related solely to fees payable” under the agreement. Likewise, the clause at issue in Zachariou v. Manios, 68 A.D.3d 539, 10 539 (1st Dep’t 2009) was limited to disputes concerning the amount of distributions contemplated by the parties’ agreement. In these cases, the arbitration provision applied to only a narrow set of issues arising from the agreements, but here the provision applies to all claims that have any connection to Agreement 4 and the Termination Agreement. See State v. Philip Morris Inc., 30 A.D.3d 26, 31 (1st Dep’t 2006). 2. The Forum Selection Clause in Agreement 1 Does Not Limit the Arbitrators’ Authority. i. Only the Arbitrators can Interpret the Termination Provisions and Decide if They Nullify the Forum Selection Clause. The First Department majority held that Agreement 1 designated the courts of the United States for adjudication of any claims and “the subsequent agreements, notwithstanding their arbitration clauses, did not nullify that designation.” (R. 584.) Plaintiffs-Respondents claim this holding means the court cannot find a clear and unmistakable delegation of authority to the arbitrators. However, as both the dissenting justices in the First Department and the Supreme Court found, the question of whether and to what extent Agreement 4 and the Termination Agreement nullify Agreement 1 is a threshold question of contract interpretation reserved for the arbitrators. (R. 40, 601-02.) “The question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a 11 matter for resolution by the arbitrator.” Bd. of Ed. of Lakeland Cent. School Dist. of Shrub Oak v. Barni, 49 N.Y.2d 311 (1980). The Arbitration Provisions state that “[a]ny dispute arising out of or in connection with this Agreement” must be arbitrated. (R. 112 & 116.) Plaintiffs-Respondents repeatedly cite to this language in their briefs. (Opp. at 8, 12, 27, 39-42, 46-48, 50.) In relying on the language, Plaintiffs-Respondents concede that any dispute about the interpretation of the Termination Provisions in Agreement 4 and the Termination Agreement must be submitted to the arbitrators. ii. Deferring the Question of Arbitrability to the Arbitrators is not Inconsistent With the Forum Selection Clause Plaintiffs-Respondents claim that, assuming Agreement 1 still exists, recognizing the arbitrators’ authority to rule on the arbitrability of Plaintiffs- Respondents’ claims “would override the [F]orum [S]election [C]lause” because “that provision reserves the determination of jurisdiction to the court.” (Opp. at 26.) However, contrary to Plaintiffs-Respondents’ claim, nothing in the Forum Selection Clause “reserves the determination of jurisdiction to the court.” To the contrary, the Clause is silent about who decides the question of jurisdiction, it does not even specify what court in the United States has jurisdiction. (R. 81.) In contrast, in addition to incorporating LCIA Article 23.1, the Arbitration Provisions expressly allow the arbitrators to decide “any question regarding [the Agreements’] existence, validity or termination.” (R. 111.) This provides clear evidence that the parties 12 intended the arbitrators and not to court to interpret the Termination Provisions and rule on arbitrability. As such, it is up to the arbitrators to decide if and to what extent the parties intended to override the Forum Selection Clause. (R. 40.) iii. The Timing of Plaintiffs-Respondents’ Claims Does Not Affect the Arbitrators’ Authority to Rule on Those Claims’ Arbitrability. The First Department majority, and Plaintiffs-Respondents, assert that because some of their claims arose before July 2009, those claims are outside the scope of the Arbitration Provisions, and the arbitrators have no authority to rule on their arbitrability. (Opp. at 26-27; R. 593.) Agreement 4 and the Termination Agreement both became effective as of July 1, 2009. (R. 103, 116.) However, the majority erred by relying on this date to remove Plaintiffs-Respondents’ claims from the ambit of the arbitrators’ authority. To the contrary, LCIA Article 23.1 specifically grants the arbitrators authority to rule on the “scope of the Arbitration Agreement.” By definition, any time an arbitrator is asked to rule on the scope of the arbitration, at least one party is arguing that some or all of the claims fall outside that scope. New York courts regularly require parties with claims that arguably fall outside the scope of an arbitration clause to submit questions of arbitrability to the arbitrators. For example, in Oriental Republic of Uruguay v. Chem. Overseas Holdings, Inc., No. 05 CIV. 6151(WHP), 2006 WL 164967 (S.D.N.Y. Jan. 24, 13 2006), the plaintiffs’ claims pre-dated the relevant arbitration agreement. Id. at *6. The court held that, even though it may agree that the claims fell outside the scope of the arbitration provision, it could “not supplant the role of the arbitrator by anticipating the result likely to emerge from” the arbitrator’s review of the claims’ arbitrability. Id. at *7; see also Argus Media Ltd. v. Tradition Fin. Services Inc., No. 09 Civ. 7966(HB), 2009 WL 5125113, at *3 (S.D.N.Y. Dec. 29, 2009) (“the arbitrator likewise has the sole authority to determine whether claims that arose post- expiration of the arbitration clause are within the scope of the clause”). Moreover, as discussed infra, Defendants-Appellants assert that Agreement 4 superseded Agreement 1 and the Termination Agreement released all liability under Agreement 1. Plaintiffs-Respondents’ disagree with this interpretation. Therefore, the notion that some of Plaintiffs-Respondents’ claims arose under Agreement 1 depends entirely on the interpretation of Agreement 4 and the Termination Agreement. Thus, regardless of when Plaintiffs-Respondents’ claims accrued, the question of arbitrability is connected to and dependent upon the arbitrators’ interpretation of those Agreements. iv. New York Case Law Supports the Arbitrators’ Authority to Rule on Questions About Arbitrability. Plaintiffs-Respondents assert that there are no cases in New York that support the dissenting justices’ position that the arbitrators must interpret the Termination 14 Provisions and decide the issue of arbitrability. (Opp. at 25.) But that is simply incorrect. For example, the issue presented in Offshore Expl. and Prod. LLC v. Morgan Stanley Private Bank, N.A., 986 F. Supp. 2d 308 is similar to the instant situation. Just as here, the parties in Offshore entered two agreements: a stock purchase agreement that called for arbitration before the AAA and an escrow agreement that allowed the parties to bring claims in any New York court. Id. at 312-13. The court found that only the arbitrators could rule on the question of arbitrability due to the AAA rules’ delegation of that authority. Id. at 315-16. Nevertheless, the plaintiff argued that its claims arose under the escrow agreement, and therefore, were excluded from arbitration. The court rejected this assertion. “The short—and sufficient—response to this argument is that ... the parties agreed in the Stock Purchase Agreement that questions concerning whether this dispute [is] encompassed within the arbitration clause … should be decided by the arbitrators.” Id. at 316. Similarly, in WMT Inv'rs, LLC v. Visionwall Corp., 09 CIV. 10509 (RMB), 2010 WL 2720607 (S.D.N.Y. June 28, 2010), the agreement included “both a broadly worded arbitration clause and a clause allowing the parties to seek equitable relief from courts.” Under Second Circuit precedent, “the presence of both clauses creates an ambiguity as to whether the parties assigned questions of arbitrability to 15 the arbitrator.” Id. at *3. But, the court ordered the parties to arbitrate the question of arbitrability because “the parties’ incorporation of the AAA” rules served “‘as clear and unmistakable evidence of the parties’ intent to delegate [issues of arbitrability] to an arbitrator.’” Id. (quoting Contec Corp. v. Remote Sol., Co., Ltd., 398 F.3d 205, 208 (2d Cir. 2005)). These cases show that the incorporation of LCIA Article 23.1 in the Arbitration Provisions distinguishes the instant action from the cases Plaintiffs- Respondents cite to for support. (Opp. at 28.) The arbitration clauses in In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113 (2d Cir. 2011); TAPCO Underwriters, Inc. v. Catalina London Ltd., No. 14-CV-8434 JSR, 2014 WL 7228711 (S.D.N.Y. Dec. 8, 2014); and Gen. Motors Corp. v. Fiat S.p.A., 678 F. Supp. 2d 141 (S.D.N.Y. 2009), all lacked the clear and unmistakable delegation created by Article 23.1. The arbitration provision in TAPCO Underwriters, failed to designate any arbitration rules, and thus, there was no provision similar to Article 23.1. 2014 WL 7228711, at *2-3. Likewise, in Am. Exp. Fin. Advisors, there was no agreement to arbitrate at all, rather the arbitration was based on one party’s membership in FINRA, which the court held was insufficient to show both parties’ clear and unmistakable intent. 672 F.3d at 131. The contracts at issue in Gen. Motors Corp. both contained equally broad arbitration provisions calling for arbitration by different bodies, as such there 16 was no clear indication which arbitrable body was to rule on arbitrability. 678 F. Supp. 2d at 146. Furthermore, in TAPCO Underwriters, Inc., and Gen. Motors Corp. there was no question that both forum selection clauses were in full force and effect. In contrast, here the Termination Provisions create a substantial question of whether the Forum Selection Clause in Agreement 1 is still in effect, which again, is a dispute only the arbitrators can resolve. Moreover, the holding in Am. Exp. Fin. Advisors supports this determination. There, the parties “revoked [their] consent to arbitrate certain claims” as part of a class action settlement agreement, which granted the district court “[e]xclusive jurisdiction” to interpret the agreement. 672 F.3d at 131. Based on this language, the Second Circuit held that the issue of arbitrability remained with the district court because only it could interpret the settlement agreement and determine if any arbitrable claims survived. In the same way, here the Arbitration Provisions gave the arbitrator the exclusive authority to interpret the Termination Provisions and determine whether any arbitrable claims under Agreement 1 survived. 17 III. THE PARTIES’ CHOICE OF ENGLISH LAW SHOULD BE RESPECTED. 1. Defendants-Appellants Consistently Asserted that English Law Governs Agreement 4 and the Termination Agreement. Plaintiffs-Respondents’ do not dispute that all the Agreements, except Agreement 1, are governed by “the laws of England and Wales.” (R. 89, 98-99, 111, 116.) Instead, Plaintiffs-Respondents argue that the Court should ignore the parties’ choice of law because Defendants-Appellants never mentioned the importance of English law before. However, Defendants-Appellants’ briefs are replete with references to the Agreements’ choice of law provisions, and the importance of English law in this case. For example, the parties raised the applicability of English law in their briefs to the Supreme Court and debated the issue during oral arguments. (R. 33, 34.) Likewise, on appeal, Mr. Stein and Aurdeley repeatedly asserted that Agreement 4 must be “governed and construed under the laws of England and Wales.” 2015 WL 11077898, at *2, 4, 9, 13-15, 17 (1st Dep’t Aug. 12, 2015); 2015 WL 11077900 (1st Dep’t Aug. 12, 2015). 2. The Court Should Apply English Law to Interpret the Arbitration Provisions. In New York, it is a “basic premise[] that courts will generally enforce choice- of-law clauses[.]” Ministers and Missionaries Ben. Bd. v. Snow, 26 N.Y.3d 466, 470 (2015). Nonetheless, Plaintiffs-Respondents assert “the New York courts uniformly” ignore this premise when it comes to forum selection clauses. (Opp. at 18 35.) Nonetheless, Plaintiffs-Respondents cite to no opinion from this Court that declares such a sweeping rule, and there is no logical reason for this Court to adopt the rule. According to Plaintiffs-Respondents, regardless of what law the parties choose for the rest of their contract, courts must apply New York law to interpret a forum selection clause. This rule is illogical because, as the Second Circuit recently explained, “[i]f the interpretation of a forum selection clause [is] singled out for application of any law other than that chosen to govern the interpretation of the contract as a whole, ... then the same word or phrase could have a different meaning in the forum selection clause than it has elsewhere in the same contract.” Martinez v. Bloomberg LP, 740 F.3d 211, 220 (2d Cir. 2014). Such a rule “would undermine the predictability fostered by forum selection clauses” and encourage parties to forum shop. Id. Instead, the Second Circuit “distinguish[ed] between the interpretation of a forum selection clause and the enforceability of the clause.” Id. at 217. It applied the law from the choice-of-law provision to interpret the terms of the forum selection clause, and then applied federal common law to determine the enforceability of the clause.3 Id. Applying this rule, the Second Circuit used English law, in particular Fiona Trust, to interpret the meaning of the arbitration provision, 3 Plaintiffs-Respondents attempt to distinguish Martinez by noting that the Second Circuit “applied federal common law[.]” (Opp. at 37.) This distinction rings hollow given Plaintiffs-Respondents’ earlier assertion that “it is commonplace for New York state courts to rely on cases from the federal courts regarding arbitration issues.” (Opp. at 29.) 19 and granted the motion to compel arbitration. Id. at 224. Courts around the country have since adopted the Second Circuit’s approach. See, e.g., PTS Data Center Solutions, Inc. v. RF Code, Inc., No. 2:14–3483 (WJM), 2015 WL 733643 (D.N.J. Feb 20, 2015); Brenner v. National Outdoor Leadership School, 20 F. Supp. 3d 709 (D. Minn. 2014). This Court should join these other courts and adopt the approach applied by the Second Circuit. None of the cases cited by Plaintiffs-Respondents persuasively argue against such a position. First, Plaintiffs-Respondents claim that, in Brooke Group Ltd. v. JCH Syndicate 488, 87 N.Y.2d 530 (1996), this Court applied New York law to a forum selection clause in a contract that called for application of English law. Id. at 534. But, the question of which law would apply to the forum selection clause was never discussed in Brooke. Furthermore, the court did not apply New York law to interpret the forum selection clauses’ terms, rather it evaluated the effect of the clause pursuant to New York law, and then applied “the plain meaning of the words used by the parties” to interpret the clause. Id. Plaintiffs-Respondents also rely on two trial court decisions, New York Trans Harbor LLC v. Derektor Shipyards Conn., LLC, 19 Misc. 3d 1134(A) (Sup. Ct. Kings Cnty. 2008) and USA India Export Import, Inc. v. Coca-Cola Refreshments USA, Inc., 46 Misc. 3d 1215(A) (Sup. Ct. Westchester Cnty. 2015), neither of which 20 is precedential on this Court, and in neither did the choice of law affect the court’s holding, as it did here. E.g., 19 Misc. 3d 1134(A) at n.1 3. English Law Establishes that Plaintiffs-Respondents’ Claims Must be Submitted to Arbitration. Plaintiffs-Respondents next attempt to dismiss the Fiona Trust case as irrelevant and claim that the application of English law would not warrant reversal. First, Plaintiffs-Respondents assert that the Court should ignore Fiona Trust because the parties did not intend to rely on it. (Opp. at 39-40.) This argument is misguided in that a court’s job is to interpret contracts based on all the relevant precedent, not to question whether the parties intended any particular case to apply. Moreover, it is nonsensical for Plaintiffs to argue that “[i]f the parties wanted the arbitration clauses to cover the[ir] ‘relationship’…, they would have expressly said so.” (Opp. at 40.) The fact that they chose English law meant that they did not need to make such an express statement, and thus, the Court cannot conclude that the parties’ failure to use the word “relationship” evidenced an intent to limit the Arbitration Provisions’ scope. Plaintiffs-Respondents also dismiss as mere “dicta” Lord Hoffman’s seminal holding that “rational businessmen[] are likely to have intended any dispute arising out of the relationship into which they have entered ... be decided by the same tribunal.” (Opp. at 39 (quoting [2007] UKHL 40 at ¶ 13).) But, far from being dicta, 21 “English courts have repeatedly applied the holding in the Fiona Trust case to cases involving forum selection clauses.” Martinez, 740 F.3d at 224. Plaintiffs-Respondents next claim that Fiona Trust does not apply to cases where there are multiple agreements. (Opp. at 43.) But this is again a misreading of English law. English courts regularly apply the principle behind Fiona Trust in cases where there are multiple agreements. In Sebastian Holdings Inc. v. Deutsche Bank AG, [2010] EWCA (Civ) 998, available at http://www.bailii.org/ew/cases/EWCA/Civ/2010/998.html, the court stated that “parties to an arrangement between them set out in multiple related agreements do not generally intend a dispute to be litigated in two different tribunals.” Id. at ¶ 49. Similarly, the case that Sebastian relied on, UBS AG v. HSH Nordbank AG, [2009] EWCA (Civ) 585, available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/585.html, applied this principle to multiple agreements with conflicting jurisdiction clauses. There, the English Court of Appeals cited to Fiona Trust and stated that “sensible business people would not have intended that a dispute of this kind would have been within the scope of two inconsistent jurisdiction agreements.” Id. at ¶¶ 82-84. The court proceeded to state that “the essential task is to construe the jurisdiction agreement in the light of the transaction as a whole.” Id. at ¶ 83. The court emphasized that any interpretation must be construed in a commercially reasonable way “that sensible business people” 22 would have intended. Id. at ¶ 84. Furthermore, under English law, where one contract terminates a prior contract, the forum selection clause of the termination agreement controls. See Monde Petroleum SA v. Westernzagros Ltd, [2015] EWHC 67 (Comm) at ¶38, available at http://www.bailii.org/ew/cases/EWHC/Comm/2015/67.html. Applying these cases compels the application of the Arbitration Provisions to Plaintiffs’ claims. Only Agreement 1 chose the United States and the later agreements terminated and superseded Agreement 1. Plaintiffs-Respondents’ insist that despite this progression, the Forum Selection Clause in Agreement 1 controls. This is commercially unreasonable. As Plaintiffs’ claims show nearly every dispute with a consultant like Mr. Stein can be said to concern the parties’ relationship. “Sensible business people” would not draft detailed arbitration provisions, but then intend for those provisions to be irrelevant because an earlier provision superseded them by covering all claims regarding their relationship. As such, this Court should hold that the First Department erred by not applying English law to require Plaintiffs to arbitrate their claims. 23 IV. EVEN IF NEW YORK LAW CONTROLS, PLAINTIFFS- RESPONDENTS’ CLAIMS MUST BE ARBITRATED. 1. Public Policy Unequivocally Favors Arbitration of Plaintiffs- Respondents’ Claims. Assuming the court must decide the arbitrability of Plaintiffs-Respondents’ claims under New York law, the First Department majority erred by not applying New York’s policy favoring arbitration to hold that Plaintiffs-Respondents’ claims are arbitrable. New York strongly favors arbitration on policy grounds, especially in the context of international transactions like those present here. Cooper v. Ateliers de la Motobecane, S.A., 57 N.Y.2d 408, 411 (1982). “[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Singer v. Jefferies & Co., Inc., 78 N.Y.2d 76, 81-82 (1991). Pursuant to this policy, “[i]f the conduct alleged implicates the parties’ rights and obligations under [the agreement] containing the arbitration clause, … or touches matters covered by the … agreement …, the matter is subject to arbitration.” In re Same Time Holdings Ltd. and Red Bd. Ltd, 12 Misc. 3d 1186(A) (Sup. Ct. N.Y. Cnty. 2006); see also L & R Expl. Venture v. Grynberg, 22 A.D.3d 221, 221–22 (1st Dep’t 2005). The preference for arbitration applies equally where there are potentially conflicting forum selection clauses. In In re Arbitration Between Ayco Co., L.P., 3 A.D.3d 635 (3d Dep’t 2004), the parties signed a partnership agreement that called for arbitration, but later amended the agreement such that claims concerning a non- 24 solicitation provision needed to be brought in federal court. Id. at 635-36. The Fourth Department applied the policy favoring arbitration to find that all the plaintiff’s claims fell within the scope of the arbitration. Id. at 637. Nonetheless, Plaintiffs-Respondents try to argue that this policy should be ignored because it “only comes into play when there is a ‘clear, explicit and unequivocal’ agreement to arbitrate[.]” (Opp. at 63.) Plaintiffs-Respondents cite to Waldron v. Goddess, 61 N.Y.2d 181 (1984), where this Court refused to apply the policy because “there [was] no agreement between” the parties to arbitrate their disputes. Id. at 183-84. But, here there is no question that the parties agreed to the Arbitration Provisions, that all the parties are bound by those Provisions, and that those Provisions are still in effect. Thus, Agreement 4 and the Termination Agreement are unequivocal arbitration agreements. As in Ayco Co., the question here is whether Plaintiffs-Respondents’ claims fall within the scope of those agreements, and the policy in favor of arbitration applies. 2. Plaintiffs-Respondents Fail to Show that the Forum Selection Clause Survived Agreement 1’s Termination. Agreement 4’s recitals stated that the parties “wish to amend the terms of [their] engagement[.]” (R. 102.) Agreement 4 and the Termination Agreement then terminate Agreements 1 and 2, and Agreement 4 states in its merger clause that it “contains the entire agreement and understanding of the parties and supersedes all prior arrangements, agreements or understandings[.]” (R. 111, 116, 109 at §9.1.) 25 These provisions clearly establish that the parties’ intended Agreement 4 to supersede Agreement 1. (R. 23-24, 31-33.) Nonetheless, the First Department majority and Plaintiffs-Respondents assert that the Forum Selection Clause avoided the fate of the rest of Agreement 1 because the parties failed to explicitly “obliterate” the Forum Selection Clause. (Opp. at 4.) In support of their claim, Plaintiffs-Respondents rely primarily on three cases, this Court’s holdings in Primex Intern. Corp. v. Wal-Mart Stores, Inc., 89 N.Y.2d 594 (1997) , and Schlaifer v. Sedlow, 51 N.Y.2d 181 (1980). and the Second Circuit’s holding in Bank Julius Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d 278 (2d Cir. 2005) (“Bank Julius”). Each of these cases is distinguishable from the instant matter and therefore Plaintiffs’ assertion is contrary to well settled New York law. First, in all the cases Plaintiffs-Respondents cite to, an earlier agreement included an arbitration provision and the issue was whether a later forum selection clause superseded that arbitration provision. In these cases, the policy favoring arbitration lead the courts to hold that the arbitration clause was not superseded. See Bank Julius, 424 F.3d at 285. However, these cases stand in the opposite position to the agreements here, where the Arbitration Provisions in the later agreements superseded the Forum Selection Clause in the earlier agreement. As such, New York’s policy here favors the Arbitration Provisions in the later agreements over the 26 earlier Forum Selection Clause, and any doubts about the scope of the arbitration must be resolved in favor of arbitration.4 Second, as Aurdeley noted in Section III.1. of its opening brief, neither of the later signed agreements in Primex and Schlaifer included a forum selection clause, thus there was no clause in those later agreements that superseded the earlier arbitration provision. Plaintiffs-Respondents assert that “there is no basis” for this distinction because the lack of a conflicting forum selection clause is irrelevant. However, this assertion stands at odds with settled law, whereby a later mandatory forum selection clause supersedes an earlier arbitration provision. See Goldman, Sachs & Co. v. Golden Empire Schools Fin. Auth., 764 F.3d 210, 216 (2d Cir. 2014) (holding that a later agreement that included a mandatory forum selection clause superseded an earlier arbitration agreement); Applied Energetics, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522, 524 (2d Cir. 2011) (same); cf. Mitsubishi Electric Corp. v. Westcode, Inc., 3:15-CV-505(MAD/DEP), 2016 WL 3748023, at *7 (N.D.N.Y. July 11, 2016) (holding that where a later agreement did not include a forum selection clause, the earlier arbitration provision survived). 4 The order of the agreements also distinguishes this matter from the conclusion in Applied Energetics, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522, 524 (2d Cir. 2011), not to apply the policy in favor of arbitration. There, the issue was whether the later agreement terminated the arbitration agreement. As such, there was a question about whether the arbitration agreement still existed, and the policy in favor of arbitration no longer applied. Here, there is no question about the Arbitration Provisions’ existence, but rather whether their scope applies to the instant claims. 27 In Bank Julius, the later agreement included a non-mandatory forum selection clause whereby the parties submitted to jurisdiction in New York, but were not required to bring claims there. 424 F.3d at 282. The Second Circuit ruled that this permissive forum selection clause did not supersede the earlier arbitration provision because the two did not conflict. Id. at 283. The Second Circuit distinguished Bank Julius in both Applied Energetics and Goldman, Sachs because in those cases the later agreement’s forum selection clause was mandatory, and therefore, specifically precluded arbitration. See Mitsubishi Electric Corp., 2016 WL 3748023 at *7 (contrasting the holdings in Applied Energetics and Goldman, Sachs from the holding in Bank Julius); Offshore Expl. and Prod. LLC, 986 F. Supp. 2d at 320 (same). Here, the Arbitration Provisions in Agreement 4 and the Termination Agreement are substantively the same as the later mandatory forum selection clause in Applied Energetics. (R. 111, 116 (“Any dispute arising out of or in connection with this Agreement … shall be referred to … arbitration”)). See Applied Energetics, Inc., 645 F.3d at 523 (“Any dispute arising out of this Agreement shall be adjudicated in” court). The Arbitration Provisions, therefore, are mandatory and precluded litigation in court. As such, they superseded the Forum Selection Clause. Third, Plaintiffs-Respondents argue that the Forum Selection Clause survived termination of Agreement 1 because the Arbitration Provisions did not explicitly 28 reference the Forum Selection Clause, and only applied to “this Agreement.” In this way, Plaintiffs-Respondents claim the Arbitration Provisions failed to satisfy the standard set out in Schlaifer that the later agreement must “nullify” or “obliterate” the earlier forum selection clause. (Opp. at 58.) But again, this argument stands in stark contrast to the modern approach to the issue. In both Applied Energetics and Goldman, Sachs, the Second Circuit held that “there is no requirement that the forum selection clause mention arbitration” to supersede the prior arbitration clause, even if the later forum selection clause stated that it only applied to “this agreement.” Goldman, Sachs & Co., 764 F.3d at 215; Applied Energetics, Inc., 645 F.3d at 525. Fourth, Plaintiffs-Respondents asserted that the merger clause in Agreement 4 was substantively similar to the merger clauses in Primex and Bank Julius, and as such the merger clause here was insufficient to establish that the Agreement 4 superseded Agreement 1. (Opp. at 53.) This is an overly simplistic reading of Primex and Bank Julius. Primex is distinguishable because the issue in that case was whether the merger clause, which did not explicitly state that it “superseded” any prior agreements, standing alone was sufficient to terminate the earlier arbitration provision. Primex Intern. Corp., 89 N.Y.2d at 599 (holding that the merger clause standing alone was insufficient to revoke the arbitration provision). Bank Julius is also distinguishable in that the later agreement there stated that “[w]ithout exception, all the rights and remedies provided in this Agreement are 29 cumulative and not exclusive of any rights or remedies provided under any other agreement or by law or in equity.” 424 F.3d at 283. The Second Circuit found that this “incorporation clause” limited the effect of the merger clause. See also Biremis, Corp. v. Merrill Lynch, Pierce, Fenner & Smith Inc., CV-11-4934 LDW, 2012 WL 760564, at *3 (E.D.N.Y. Mar. 8, 2012) (distinguishing Bank Julius based on the incorporation clause). In contrast, here, the merger clause in Agreement 4 explicitly states that it “supersedes all prior arrangements,” nothing in Agreement 4 limits this effect, and the merger clause is interpreted along with the Arbitration Provisions. (R. 109.) As such, the mandatory Arbitration Provisions superseded the earlier Forum Selection Clause. 3. Plaintiffs-Respondents’ Claims Must Be Arbitrated Pursuant to Agreement 4. Plaintiffs-Respondents argue that their claims are not subject to the arbitration provision because “the courts have uniformly refused to apply dispute resolution provisions … retroactively where the clause is limited to claims under ‘this Agreement.’” (Opp. at 47.) Plaintiffs-Respondents then cite to a number of cases both inside and outside of New York that supposedly support this “uniform” position. However, as discussed supra, the “this Agreement” language does not determine the scope of arbitration clause. Instead, it is the words “arising out of or in connection with” that come before “this Agreement” that determine the scope of 30 the arbitration clause. Courts analyzing similar arbitration clauses hold that claims that arose before the arbitration agreement was signed are arbitrable. E.g., Bangkok Crafts Corp. v. Capitolo di San Pietro in Vaticano, 331 F. Supp. 2d 247, 257 (S.D.N.Y. 2004). In each of the cases Plaintiffs-Respondents rely on, the contract containing the arbitration provision was separate and distinct from the prior agreement, and as such the court held that the claims that arose prior to the arbitration agreements had no connection to the later arbitration agreements. See, e.g., TAPCO Underwriters, Inc., 2014 WL 7228711 at *4 (holding that the agreements covered different time period and used “terms that apply only to insurance policies bound during that period”); Anselmo v. Univision Sta. Group, Inc., No. 92 CIV. 1471 (RLC), 1993 WL 17173, at *2 (S.D.N.Y. Jan. 15, 1993) (stating that the arbitration provisions did not apply retroactively because the claims arose under a separate agreement that had no relation to the arbitration agreement). Here, Agreement 4 and the Termination Agreement by their terms amend, terminate, and supersede Agreement 1. Consequently, any claims Plaintiffs-Respondents may or may not have under Agreement 1 are connected to Agreement 4 and depend on the interpretation of that agreement. Therefore, those claims implicate “the parties’ rights and obligations under” Agreement 4 and “the matter is subject to arbitration.” In re Same Time Holdings Ltd., 12 Misc. 3d 1186(A). 31 CONCLUSION For the forgoing reasons, Aurdeley respectfully requests that the Court reverse the Appellate Order and reinstate the Supreme Court’s Arbitration Order. Dated: December 22, 2016 SIRI & GLIMSTAD LLP ______________________________ Aaron Siri Mason Barney 200 Park Avenue, Seventeenth Floor New York, New York 10166 Tel: (212) 532-1091 Attorneys for Aurdeley Enterprises Limited /s/ Aaron Siri CERTIFICATION I certify pursuant to 500.13(c)(1) that the total word count for all printed text in the body of the brief, exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by subsection 500.1(h) of this Part is 6,946 words.