Hewlett-Packard v. Berg, 61 F.3d 101, 1st Cir. (1995)

61 F.
3d 101
HEWLETT-PACKARD COMPANY, INC., Plaintiff,

Appellant,
v.
Helge BERG, etc., et al., Defendants, Appellees.
No. 94-2251.
United States Court of Appeals,

First Circuit.
Heard April 6, 1993.
Decided Aug. 3, 1995.
Richard Allan Horning with whom Horning, Janin & Harvey, Kevin P.
Light, Choate, Hall & Stewart and Robert W. Sutis were on brief, for
appellant.
David A. Burman, for appellees.
BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL,
Circuit Judge.
BOUDIN, Circuit Judge.
Hewlett-Packard appeals from an order of the district court confirming an

arbitration award rendered in a business dispute with appellees Helge Berg and
Lars Skoog and rejecting Hewlett-Packard's requests for a stay of the
confirmation proceeding or a declaration that it is entitled to a set-off for the
award. The case presents several difficult legal issues which can be understood
only after a brief description of the facts and prior proceedings.
I. BACKGROUND
2
In March 1982, Apollo Computer, now owned by Hewlett-Packard, entered

into a two-year distributorship contract with a Swedish company called
Dicoscan Distributed Computer Scandinavia to sell Hewlett-Packard products
in several Nordic countries. The 1982 contract included an agreement to submit
any dispute under the contract to binding arbitration. In March 1984, the parties
executed a new distributorship contract, which also contained an arbitration

clause.
3
In the meantime, during 1983 and 1984, Dicoscan experienced financial

problems. In mid-1984, Apollo claimed that Dicoscan was far behind in its
payments. In September, Apollo terminated the 1984 agreement. The following
month, Dicoscan filed for bankruptcy. The bankruptcy court assigned to Berg
and Skoog, directors and officers of Dicoscan, the right to bring claims against
Apollo based on the contracts.
Berg and Skoog filed a request for arbitration with the International Chamber
of Commerce Court of Arbitration, claiming millions of dollars of damages
arising out of Apollo's unilateral termination of the 1984 agreement. Apollo
counterclaimed in the arbitration by asserting that the Swedish company had
failed to pay about $10,000 due on the 1984 contract and about $207,000 due
under the 1982 contract. After a dispute about Berg and Skoog's right to invoke
arbitration, see Apollo Computer, Inc. v. Berg, 886 F.2d 469, 473 (1st
Cir.1989), an arbitration proceeding was begun.
The arbitrators were required by the parties' contracts to apply Massachusetts

law. Ultimately, the arbitrators awarded around $700,000 plus interest to Berg
and Skoog, but allowed a set-off for the $10,000 that Dicoscan still owed
Apollo under the 1984 contract. To both parties' surprise, the tribunal held that
it was without jurisdiction to decide Apollo's more substantial claim based on
the 1982 contract, ruling that the 1982 contract was not within the Terms of
Reference issued by the arbitrators at the beginning of the proceeding.
As a result, Apollo was left with a sizable obligation to Berg and Skoog on the
1984 contract without a determination of its claim for more than $207,000 on
the 1982 contract. Apollo unilaterally decided to pay the arbitration award
amount but subtracted the $207,000 plus interest (together, about $300,000) as
a "setoff in recoupment," which, it said, is a time-honored common law
doctrine embraced in Massachusetts courts. Apollo also filed a request with the
tribunal for a second arbitration regarding the 1982 contract. That tribunal has
indicated that it will hear the arbitration.
In January 1993, Apollo (later succeeded as the plaintiff by Hewlett-Packard)

filed the complaint in this action with the Massachusetts district court. HewlettPackard requested that the district court (1) declare that Hewlett-Packard was
entitled to the $207,000 set-off and that the arbitration award is fully satisfied,
and (2) vacate the tribunal's award and correct it. Hewlett-Packard later
withdrew its second claim for relief.

8
Berg and Skoog moved to dismiss the complaint, arguing that such declaratory
relief is unavailable as to foreign arbitration awards. Later, Berg and Skoog
moved for confirmation of the arbitration award. Hewlett-Packard opposed
confirmation of the award on the ground that, by failing to include its 1982 setoff, the award was contrary to public policy. In the alternative, Hewlett-Packard
moved to stay confirmation, pending the outcome of the second arbitration.
Hewlett-Packard also asked the court to compel arbitration as to its 1982 claim.
On November 7, 1994, the district judge filed a memorandum, together with a

separate order, disposing of all of these motions. The court's order compelled
arbitration under the 1982 contract but it confirmed the award previously made
by the tribunal on the 1984 contract. The court said that it was without power to
stay the confirmation proceeding, as Hewlett-Packard had requested, and that
the request for a set-off was an improper attempt to modify the tribunal's
award.
10
Apparently ready to enforce the now-confirmed arbitration award, Berg and

Skoog moved the court for entry of final judgment, and proffered a detailed
judgment specifying the award, interest and attorney's fees. Four days later,
Hewlett-Packard filed its notice of appeal and thereafter filed a response
disputing certain aspects of the proposed judgment. The district court has not
acted on the motion for entry of final judgment; and no such judgment has been
entered.
II. DISCUSSION
11
Hewlett-Packard purports to appeal all three of the district court's adverse

actions: the confirmation of the arbitration award, the refusal to stay that
confirmation proceeding pending the outcome of the second arbitration; and the
rejection of Hewlett-Packard's set-off claim declaration. Commendably,
Hewlett-Packard has alerted us to a possible jurisdiction problem, which this
court is obliged to consider. We do so but caution future panels that the
jurisdictional problems have not been briefed in this case.
12
Nothing in the record in this case purports to be a "final judgment," set forth in
a separate document as required by Fed.R.Civ.P. 58, disposing of all claims.
Thus, in formal terms there is no basis for appeal of a "final decision" under 28
U.S.C. Sec. 1291, even if the court actually resolved all of the claims before it.
Indeed, as already noted, the defendants have pending a motion that requests
entry of a "final judgment."

13
Nevertheless, the November 7 order, insofar as it confirms the arbitration

award, is appealable now because Congress directed in the statute governing
arbitration-related appeals that such an "order" confirming an award should be
immediately appealable. 9 U.S.C. Sec. 16(a)(1)(D). The reason is a proarbitration policy designed to expedite confirmation of arbitration awards. This
is clear from precedent and scholarly commentary. See, e.g., 15B C. Wright, A.
Miller & E. Cooper, Federal Practice and Procedure Sec. 3914.17, at 9-12, 3234 (2d ed. 1992).
14
There is one technical hitch. Seemingly, the order confirming the award is not
itself a judgment that can be collected through court processes until it is entered
on the docket as a judgment. See 9 U.S.C. Sec. 13. This has nothing to do with
the final judgment rule; rather, the statute that governs confirmations provides
that after a confirmation is ordered, a separate "entry of judgment" must be
made pursuant to that order, and it is only at that stage that "[t]he judgment so
entered ... may be enforced as if it had been rendered in an action in the court in
which it is entered." Id.
15
Nevertheless, the Federal Rules of Civil Procedure do not say that appeals can
only be taken from judgments; on the contrary, they contemplate that, subject to
the complex rules that determine what is immediately appealable, there may be
such a thing as an "appealable order" that is not a judgment. Fed.R.Civ.P. 79(b).
And, as already noted, Congress has designated as immediately appealable "an
order ... confirming ... an [arbitration] award." 9 U.S.C. Sec. 16(a)(1)(D).
16
Our position is not at odds with Middleby Corp. v. Hussmann Corp., 962 F.2d
614 (7th Cir.1992). Middleby held that no immediate appeal could be taken
where the district court issued an order of confirmation but declined to enter
judgment after making a specific determination to delay giving effect to the
confirmation order until further proceedings were concluded. Here, by contrast,
the district court denied the requested stay, and the confirmation order is
immediately effective, requiring only the filing of specified papers with the
clerk to permit "the entry of judgment thereon." 9 U.S.C. Sec. 13.
17
Because the confirmation order is appealable, we think that there is also before
us Hewlett-Packard's claim that the confirmation proceeding should have been
stayed. The reason is simply that the underlying argument for a stay is also an
objection to the confirmation order itself. To this extent, it is effectively an
interlocutory ruling made in the process of approving the confirmation request
and like any other such interlocutory ruling it is reviewable at the time that the
confirmation order itself is brought up on appeal. Cf. Stringfellow v.
Concerned Neighbors in Action, 480 U.S. 370, 375, 107 S.Ct. 1177, 1181, 94
L.Ed.2d 389 (1987); 15A Wright, Miller & Cooper, supra, Sec. 3905.1, at 24963.
18
A similar argument might also be made to justify an appeal now based on the
district court's refusal to declare Hewlett-Packard's right to the set-off it
asserted. The problem is complicated, but we see no need to resolve the
complexities. Whether or not the refusal to allow the set-off is an appealable
issue, the refusal at this time turns out not to be a legal error, so the
jurisdictional issue need not be decided. See Norton v. Mathews, 427 U.S. 524,
530-32, 96 S.Ct. 2771, 2774-76, 49 L.Ed.2d 672 (1976); In re Pioneer Ford
Sales, 729 F.2d 27, 31 (1st Cir.1984).
19
We turn now to the merits. Hewlett-Packard does not object to the confirmation
of the award in all respects; it says it has paid the award except the disputed
amount including interest. But Hewlett-Packard says that the district court erred
by confirming the award in full instead of either allowing a set-off or granting a
stay of the confirmation pending the results of the new arbitration.
20
We agree with the district court's rejection at this time of the first alternative.
Whether Hewlett-Packard has a valid claim under the 1982 contract is subject
to arbitration; we agree with the district court--and Hewlett-Packard--that the
tribunal has never resolved the merits of that claim. Whatever the
Massachusetts law on set-offs, the district court could not allow the set-off at
present without determining that Hewlett-Packard had a valid claim, which is
the very subject of the arbitration.
21
It is hard to imagine a step that would be more offensive to the pro-arbitration

policies reflected in Congress' endorsement of the 1958 Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, often called the
New York Convention. The New York Convention was approved by Congress,
and implementing legislation was codified at 9 U.S.C. Secs. 201-08. The statute
enlists the aid of federal courts to compel arbitration. 9 U.S.C. Sec. 206. By
contrast, the judicial set-off requested here would circumvent the 1982 contract
to arbitrate and the now-pending arbitration under that contract.
22
The request to defer confirmation of the award under the 1984 contract stands
on a different footing. However the case might stand absent the bankruptcy,
Dicoscan's bankruptcy gives Hewlett-Packard a very substantial prudential
argument. If the existing award were confirmed in full and reduced to

judgment, Hewlett-Packard would have to pay the full award to the defendants
as successors-in-interest of an insolvent company. If in due course HewlettPackard then prevailed on its claims against the insolvent company on a closely
related transaction, it would have no assurance of collecting anything.
23
Further, Hewlett-Packard cannot be blamed for the discrepant timing in the

resolution of its claim, or at least no argument to that effect has been made.
After it was told that the defendants did have arbitration rights despite an antiassignment clause in the contracts, Hewlett-Packard apparently made a
reasonable effort to have both the defendants' claim and its own counterclaim
resolved in one proceeding at the same time. Only the arbitrators' surprising
interpretation of their mandate frustrated this attempt.
24
Under these circumstances, the seemingly fair solution would be to confirm the
award in its uncontested part, reserving confirmation of the balance until the
1982 contract dispute is arbitrated. The district court refused to consider a stay
of confirmation on the ground that it was without power to do so. We fully
understand the basis for the district court's doubt about its authority, but we
conclude that it does have the power to issue a stay in the peculiar
circumstances of this case.
25
Ordinarily there could be no doubt that a court, although obliged to decide a

claim, would retain discretion to defer proceedings for prudential reasons.
Indeed, a typical reason is the pendency of a related proceeding in another
tribunal. "[T]he power to stay proceedings is incidental to the power inherent in
every court to control the disposition of the causes on its docket with economy
of time and effort for itself, for counsel, and for litigants." Landis v. North
Amer. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936).
26
The question here is whether this traditional authority is curtailed by the New
York Convention and its implementing legislation. The statute provides that,
upon a petition for confirmation, a district court "shall confirm the award
unless it finds one of the grounds for refusal or deferral of recognition or
enforcement of the award specified in the said Convention." 9 U.S.C. Sec. 207
(emphasis added). Article VI of the Convention is the only provision that deals
with staying confirmation. Article VI states:
27an application for the setting aside or suspension of the award has been made to a
If
competent authority [in the country where the award has been made], the authority
before which the award is sought to be relied upon may, if it considers it proper,
adjourn the decision on the enforcement of the award [and require a security].
28
The circumstances outlined in Article VI do not appear to exist in this case. The
question is whether a district court may grant a stay in circumstances other than
those authorized in Article VI.
29
The fact that section 207 uses the word "shall" is not decisive, because a stay is
a deferral rather than refusal. But the fact that the statute refers to the
Convention and the Convention lists a single ground for a stay could be taken
to exclude all other grounds under the principle of expressio unius est exclusio
alterius. That was, in substance, the reasoning of the district court. However,
expressio unius is an aid to construction and not an inflexible rule. See, e.g.,
United States v. Massachusetts Bay Transport. Auth., 614 F.2d 27, 28 (1st
Cir.1980). Whatever we might think if the question were entirely open,
precedent informs our decision in this case. Domestic arbitrations are governed
by the United States Arbitration Act (chapter 1 of Title 9) but not by the
Convention (chapter 2 of Title 9). The Act states that, upon application, "the
court must grant [a confirmation] order unless the award is vacated, modified,
or corrected as prescribed in sections 10 and 11 of this title." 9 U.S.C. Sec. 9
(emphasis added). But courts routinely grant stays in such cases for prudential
reasons not listed in sections 10 and 11. E.g., Middleby, 962 F.2d at 615-16.
30
Similarly, this court has held that district courts have discretion to stay an
action to compel arbitration pending the outcome of related litigation, even
though the Act states that on a motion to compel the court "shall hear the
parties" and "shall proceed summarily to trial." 9 U.S.C. Sec. 4; see Acton
Corp. v. Borden, Inc., 670 F.2d 377, 383 (1st Cir.1982). In Acton, then-Judge
Breyer held that, in drafting the statute, Congress did not "intend[ ] a major
departure from the ordinary rule allowing one federal court to stay litigation
when another federal court is on the process of deciding the same issue." We
take the same view of Congress' intentions in implementing the Convention.
31
Of course, a stay of confirmation should not be lightly granted. A central

purpose of the Convention--an international agreement to which the United
States is only one of approximately one hundred signatories--was to expedite
the recognition of foreign arbitral awards with a minimum of judicial
interference. But the risk that the power to stay could be abused by disgruntled
litigants--real though that risk is, see Spier v. Calzaturificio, 663 F.Supp. 871,
875 (S.D.N.Y.1987)--argues more for a cautious and prudent exercise of the
power than for its elimination.
32
Because the district court acted under a misapprehension of its authority, we

vacate the confirmation order and remand for further proceedings. Whether
confirmation or collection of the award should be partially deferred pending the
resolution of the 1982 contract arbitration is a matter for the district court to
determine in the first instance. Still, we think it would require some explanation
if, in the face of the equities of this case, the district court concluded that the
full award should be confirmed and collected now.
33
The confirmation order is vacated and the matter is remanded to the district
court for further proceedings consistent with this opinion.

Hewlett-Packard v. Berg, 61 F.3d 101, 1st Cir. (1995)

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61 F.

HEWLETT-PACKARD COMPANY, INC., Plaintiff,

United States Court of Appeals,

Hewlett-Packard appeals from an order of the district court confirming an

In March 1982, Apollo Computer, now owned by Hewlett-Packard, entered

executed a new distributorship contract, which also contained an arbitration

In the meantime, during 1983 and 1984, Dicoscan experienced financial

The arbitrators were required by the parties' contracts to apply Massachusetts

In January 1993, Apollo (later succeeded as the plaintiff by Hewlett-Packard)

withdrew its second claim for relief.

On November 7, 1994, the district judge filed a memorandum, together with a

Apparently ready to enforce the now-confirmed arbitration award, Berg and

Hewlett-Packard purports to appeal all three of the district court's adverse

entry of a "final judgment."

Nevertheless, the November 7 order, insofar as it confirms the arbitration

It is hard to imagine a step that would be more offensive to the pro-arbitration

argument. If the existing award were confirmed in full and reduced to

Further, Hewlett-Packard cannot be blamed for the discrepant timing in the

Ordinarily there could be no doubt that a court, although obliged to decide a

Of course, a stay of confirmation should not be lightly granted. A central

Because the district court acted under a misapprehension of its authority, we

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