On 10 July 2017, the United States Court of Appeals for the Ninth Circuit published an Opinion in the case of Portland General Electric Company (“PGE”), Plaintiff-Appellee, v. Liberty Mutual Insurance Company; Zurich American Insurance Company (“Sureties”), Defendants-Appellants., No. 16-35628, 2017 WL 2925013 (9th Cir. July 10, 2017), vacating the district court’s judgment entering a preliminary injunction prohibiting the Sureties from pursuing claims against PGE in arbitration and denying a mandatory stay of the judicial proceedings under § 3 of the Federal Arbitration Act. The Ninth Circuit held that by virtue of PGE’s selection of the International Chamber of Commerce (“ICC”) Rules, it had “clearly and unmistakably” agreed that the arbitrators shall decide questions of arbitrability. Thus, the Ninth Circuit upheld the arbitrators’ power under the ICC rules to determine the scope of their jurisdiction, i.e., the doctrine of competence-competence, as embodied in Article 6(3) of the ICC Rules.
Partner, Nathan O’Malley, argued the matter at oral hearing in favor of vacating the district court’s decision on the basis of the ICC Rules, on behalf of Amicus Curiae, Abengoa SA.