Marks 3-Zet-Ernst Marks Gmbh & Co. Kg v. Presstek, Inc.

Of the District of Massachusetts, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 05-2794
MARKS 3-ZET-ERNST MARKS GMBH & CO. KG,
Plaintiff, Appellant,
v.
PRESSTEK, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Torruella and Lynch, Circuit Judges,
and Young, District Judge. *
Kevin M. Fitzgerald, with whom John E. Friberg, Jr. and Nixon
Peabody LLP were on brief, for appellant.
James D. Rosenberg, with whom Arpiar G. Saunders, Jr. and
Shaheen & Gordon, P.A. were on brief, for appellee.
July 11, 2006

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LYNCH, Circuit Judge. This case raises some unusual
issues about actions seeking to compel international arbitration.
The plaintiff, Marks 3-Zet-Ernst Marks GMBH ("Marks"), a
German company, and the defendant, Presstek, Inc. ("Presstek"), a
Delaware corporation with its principal place of business in New
Hampshire, in 2000 entered into a commercial agreement, which
included an arbitration clause.
The arbitration clause is governed by Chapter Two of the
Federal Arbitration Act (FAA), 9 U.S.C. §§ 201-208, which
implements the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards ("New York Convention"),
June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, reprinted following
9 U.S.C. § 201 (ratified by the United States on September 30,
1970). See Ledee v. Ceramiche Ragno, 684 F.2d 184, 186 (1st Cir.
1982). Chapter One of the FAA, 9 U.S.C. §§ 1-16, applies to
proceedings under Chapter Two, to the extent that there is no
conflict. See 9 U.S.C. § 208.
The district court dismissed Marks' petition to compel
arbitration because it understood the relief Marks was seeking was
unavailable on Marks' pleadings. In its petition, Marks mentioned
only a particular arbitral body, the Permanent Court of Arbitration
(PCA) at The Hague in the Netherlands, and in a later pleading, it
stated that "[t]he order sought from this court by Marks . . . will
address and resolve the PCA's uncertainty" as to "whether it has

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the authority to act." Based on these pleadings, Marks sought an
order to compel arbitration of the dispute before the PCA, under a
set of rules which the PCA had already stated were not the rules
that would allow it to exercise jurisdiction over the arbitration,
under the PCA's own procedural guidelines. After dismissal of its
case, Marks then attempted to change course, on a motion to the
district court for reconsideration. The court denied the motion.
We affirm the judgment of dismissal.
I.
The basic facts relevant to this appeal are undisputed.
Presstek and Marks supply products for the printing industry. In
December 2000, Presstek and Marks entered into a contract whereby
Marks agreed to market Presstek's products in parts of Europe.
Under the contract, neither party was permitted to terminate the
contract for three years, except under certain conditions.
Under Section 10(g) of the contract, the parties agreed
to submit disputes to arbitration:
Applicable Law and Jurisdiction. Any dispute
. . . between the Parties arising out of or
relating to this Agreement which cannot be
settled amicably shall be referred to and
determined by arbitration in the Hague under
the International Arbitration rules. The
ruling by the arbitration court shall be final
and binding and the Parties undertake to abide
by and to carry out the award immediately and
voluntarily. In the event that such award is
not immediately abided by and carried out, the
award of whatever nature may be enforced
without review in any court of competent
jurisdiction. The arbitration award shall

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UNCITRAL is the United Nations Commission on International 1
Trade Law, which has issued arbitration rules. See Mitsubishi
Motor Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 633
n.17 (1985); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan
Gas Bumi Negara, 364 F.3d 274, 282 (5th Cir. 2004).
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determine which Party shall bear the expenses
of the arbitration or the portion thereof
which each Party shall bear.
The arbitration clause was poorly drafted: First, the clause does
not identify the specific arbitral body at The Hague that would
adjudicate any dispute. Second, the contract language
("the International Arbitration rules") suggests that a particular
set of arbitration rules would govern the dispute; but, as it turns
out, there are no rules called the "International Arbitration
rules."
On April 4, 2002, Presstek provided notice that it wished
to terminate the contract. According to Marks, this termination
constituted a breach of contract. Marks thereafter attempted to
have Presstek agree to arbitrate the dispute, but to no avail.
Marks first asked Presstek to arbitrate the dispute under the
UNCITRAL Arbitration Rules on November 29, 2002. This request led 1
to negotiations, which were ultimately unsuccessful.
Marks made a second request for arbitration to Presstek
on March 27, 2003, but Presstek did not respond. The record does
not contain either the November 2002 or March 2003 requests by
Marks, and does not reveal whether Marks asked Presstek to
arbitrate their dispute before a particular forum.

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When Presstek did not respond, Marks did not go to court
to seek to compel arbitration or alternatively to sue for breach of
contract.
A. Proceedings Before the PCA
After Presstek did not respond to its March 2003
arbitration request, Marks sent letters to the PCA, on June 4 and
July 31, 2003, asking the PCA to designate an "Appointing
Authority" that would initiate arbitration proceedings and appoint
arbitrators. In its application, Marks asserted to the PCA that
under the arbitration clause "[i]t is evident from the choice of
The Hague as the forum for the arbitration that the 'International
Arbitration Rules' referred to in the clause are those formulated
by UNCITRAL, since these authorize the Secretary-General of the PCA
based in The Hague to appoint members to the tribunal or to
nominate a so-called Appointing Authority."
On August 4, 2003, after receipt of Marks' request, an
Assistant Legal Counsel of the PCA sent a letter to Presstek, with
a copy to Marks, informing Presstek of the arbitration request by
Marks. The letter raised questions about the competence of the PCA
to act as an arbitrator in the case:
Prior to acting . . . , the Secretary-General
[of the PCA] first satisfies himself, on the
basis of a prima facie screening of the
documentation submitted by the parties, that
he is competent to act. The Secretary-
General's competence may derive from the
parties' agreement to the application of the
UNCITRAL Arbitration Rules, Articles 6 and 7

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of which describe his role, or from any other
agreement that calls for him to act.
The PCA letter noted that the language in the parties' arbitration
referred only to "the International Arbitration rules" and "The
Hague as the place of arbitration." The PCA letter asked Presstek
to provide its comments with respect to Marks' application, after
which the matter would be submitted to the Secretary-General of the
PCA for consideration.
Presstek, in an August 14, 2003 letter to the PCA
requesting an extension of time, noted that its basic position was
that a clear agreement to apply UNCITRAL Arbitration Rules was
required before the PCA could exercise jurisdiction over the
arbitration, that there was no such clear agreement, and that the
reference to "International Arbitration rules" in the parties'
contract was too vague on the point.
The PCA granted Presstek's request for an extension, in
a letter on August 18, 2003, and noted Presstek's objection. The
letter reiterated the PCA's policy that "before acting in matters
such as this, the Secretary-General of the PCA first satisfies
himself, on the basis of a prima facie screening of the documents
submitted to him, that he is competent to act." The letter also
noted that "[w]hen the Secretary-General is not satisfied of his
competence to act, parties may, of course, seek implementation of
their arbitration agreement elsewhere or before the appropriate
national courts." The PCA invited Presstek "to comment on whether

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it wished to agree to the application of the UNCITRAL Arbitration
Rules in the present dispute."
On October 20, 2003, Presstek filed its comments with the
PCA. It refused to stipulate to application of the UNCITRAL
Arbitration Rules and reiterated its position that the contract was
not sufficiently clear as to whether the UNCITRAL rules would apply
and that the PCA should therefore decline jurisdiction. Presstek
argued that only a court, and not the PCA, could resolve the
ambiguities and concluded that the PCA should decline to arbitrate
the matter "until such time as a . . . court indicates that it
may." The record does not contain any reply by Marks.
On October 21, 2003, the PCA, in a letter to the parties,
stated that the Secretary-General had considered the parties'
submissions and concluded that it did not have the competence to
act because, based on its interpretation of the arbitration
agreement, the parties had not agreed to the application of
UNCITRAL rules:
The Secretary-General considers that he may
designate an Appointing Authority pursuant to
the UNCITRAL Arbitration Rules only when the
parties to a contract have agreed that
disputes in relation to that contract shall be
referred to arbitration under the UNCITRAL
Arbitration Rules. With respect to the
dispute arising from the parties' [contract],
the Secretary-General is not satisfied, on the
basis of a prima facie screening of the
documentation submitted by the parties, that
he is competent to act in this matter.

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The letter concluded, however, by inviting the parties "to seek the
interpretation of their arbitration agreement from any court having
jurisdiction." It noted that arbitration at the PCA might be
possible, "[g]iven that paragraph 10(g) of the Agreement specifies
The Hague as the place of arbitration."
On March 25, 2004, Marks requested Presstek to arbitrate
the dispute again, this time under the Netherlands Arbitration Act.
Again, the record does not contain this request, or reveal whether
Marks had asked for arbitration at a particular forum, either the
PCA or elsewhere. Presstek did not respond to this request.
B. Proceedings before the District Court
Marks did not challenge the PCA's refusal to hear the
case, either at the PCA itself or in a court in the Netherlands, or
attempt to arbitrate the dispute in any other forum at The Hague.
It did not immediately seek an interpretation of the agreement by
a court of competent jurisdiction, as the PCA had invited it to do.
Instead, it waited nearly eighteen months, until April 5, 2005, to
file a motion to compel arbitration in U.S. District Court in New
Hampshire under the New York Convention, as implemented by 9 U.S.C.
§§ 4 and 206.
Marks' petition was filed one day after the New Hampshire
three-year statute of limitations on contract actions had expired,
assuming that the cause of action accrued on April 4, 2002, the
date Presstek provided the termination notice to Marks. Marks, for

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its part, disputes that the New Hampshire limitations period
applies, instead arguing that the New York Convention requires
application of the Netherlands' statute of limitations, as the
parties agreed that the Netherlands would be the situs for
arbitration.
In its petition to compel arbitration, Marks asked for an
order "direct[ing] that arbitration proceed in the manner set forth
in the Agreement: in The Hague, and that the Court order such
arbitration to proceed under the American Arbitration Act's
International Rules." (emphases added). Marks also requested that
the court order Presstek to submit to arbitration; hold a hearing
on Marks' petition under Section 4 of the FAA; and award "costs,
interest, attorneys' fees and such other and further relief as the
Court deems appropriate and just." As to the proceedings before
the PCA, Marks stated only that "[t]he President of the PCA . . .
concluded that the application of the [UNCITRAL] Rules to the
Agreement was not appropriate and gave no further opinion with
respect to the Agreement."
There were a number of problems with Marks' petition.
Although Marks stated that it wanted arbitration at "The Hague"
(where a number of groups provide arbitration), the only arbitral
body mentioned in the petition was the PCA. Furthermore, there is
no set of rules called "the American Arbitration Act's
International Rules." It was not until its motion for

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The August 9, 2005 order also denied an earlier motion by 2
Presstek to dismiss the petition. Presstek had argued that the
PCA's decision not to hear the case was an "award" within the
meaning of the FAA, that the only court with the competence to
overturn that award under the New York Convention was a court in
the Netherlands, and that Marks' petition, properly construed as a
motion to vacate an arbitral award, was untimely. The district
court rejected these arguments, finding that the PCA's refusal to
arbitrate the dispute was not an "award" under the New York
Convention and that Marks' petition was timely under the FAA.
Presstek does not appeal these determinations.
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reconsideration that Marks clarified that it "intended to reference
the American Arbitration Association's international rules." But
whatever rules Marks intended to reference, Marks' petition did not
take the position that the parties' arbitration clause contemplated
application of the UNCITRAL Arbitration Rules, which, based on the
PCA letters, were the only rules which would give the PCA the
competence to act in the parties' dispute.
Thus, a natural reading of the complaint was that Marks
was seeking arbitration of the dispute at the PCA under rules which
the Secretary-General of the PCA had already stated could not give
the PCA the competence to act. The district court, in an August 9,
2005 order, gave fair warning of its concern that it would be
unable to grant the relief Marks was seeking, using the language of
mootness. It ordered Marks to show cause why its petition to
compel arbitration should not be dismissed.2
Marks filed a memorandum in response on September 1,
2005. Mark stated that "[t]he order sought from this court by
Marks . . . will address and resolve the PCA's uncertainty" as to

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"whether it has the authority to act." Marks relied on the
statement in the PCA letter that "the parties are invited to inform
the PCA should they wish to utilize the services of the PCA in the
administration of the case." Based on its reading of the PCA
letter, Marks argued that it was in truth only seeking the
interpretation of the agreement which the PCA had invited -- an
interpretation as to which arbitral rules to apply -- and that a
dispute about that very question could not render the case moot or
preclude the relief Marks sought. Marks did not seek to amend its
claims for relief in the petition to compel arbitration.
The district court dismissed Marks' petition on September
20, 2005, on the grounds that "the relief Marks seeks, an order
requiring Presstek to arbitrate their dispute at the PCA under the
American Arbitration Act's International Rules, is unavailable."
The district court read the PCA letter to say that the PCA will
"proceed with arbitration only if the parties have agreed to
arbitrate under the UNCITRAL Arbitration Rules." The court
observed that Marks "did not plead a claim seeking to interpret the
agreement to determine which arbitration rules would apply," did
not "include any allegations as to the meaning of the parties'
agreement with respect to which arbitration rules would apply," nor
"even suggest[ed] that the parties agreed to the UNCITRAL
Arbitration Rules."

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Marks moved for reconsideration on October 4, 2005, under
Fed. R. Civ. P. 59(e). It argued that the district court was
misreading the PCA letter, and that the PCA would "assist parties
. . . pursuant to the order of any court with jurisdiction" even if
the parties did not agree to apply the UNCITRAL Arbitration Rules.
For the first time, Marks clarified that the PCA letter
was immaterial. It was immaterial because arbitration could be had
in either a different forum or under a different set of arbitration
rules:
Marks has prayed that, following the required
hearing or trial, the AAA International Rules
apply, given that they are closest to the
expressed intent of the parties in their
agreement. . . . However, Marks has also
asked in its Petition for the Court to grant
whatever "relief it deems just and
appropriate" consistent with the parties'
agreement to arbitrate, the New York
Convention and the strong state and federal
policies in favor of arbitration. It is
certainly possible that, following a hearing
and trial if necessary, the Court may find an
alternative location in The Hague, and/or
rules, appropriate in order to effectuate the
parties' agreement to arbitration.
(emphasis added and citation omitted). Marks noted that there were
other arbitral bodies at The Hague besides the PCA that could hear
the case, and argued that the district court was obligated under
the New York Convention and Section 4 of the FAA to hold a hearing
or a trial to determine "the nature of the parties' arbitration
agreement as it relates to any ambiguous terms, including but not

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Presstek argues, as it did below, that we lack statutory 3
jurisdiction, because Marks has not been "aggrieved by the alleged
failure, neglect, or refusal of [Presstek] to arbitrate," which is
a prerequisite to an order compelling arbitration under 9 U.S.C.
§ 4. According to Presstek, absent a "failure, neglect, or
refusal" by it to arbitrate, there is not a justiciable case or
controversy. The district court did not address this argument.
Marks has alleged that Presstek ignored requests to arbitrate on at
least two occasions, creating at least some question, on this
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limited [to] which rules to apply and the agency and organization
to preside or supervise."
This was not the relief clearly sought in the original
complaint. Nor was this relief sought after the district court
warned Marks of the problems with how it had framed this case.
This theory was clearly articulated for the first time some three-
and-a-half years after the contract dispute arose, two years after
the PCA had declined to accept competence over the arbitration, and
six months after Marks had filed its federal court petition to
compel arbitration.
The district court denied Marks' motion for
reconsideration. Marks appeals, arguing (1) that the district
court erred in its initial conclusion that it could not grant the
relief requested, and (2) that the district court should,
nonetheless, have held a hearing to find a different forum at which
to order the arbitration, under perhaps a different set of rules.
II.
We have jurisdiction to hear this appeal from a final
order, under 28 U.S.C. § 1291. We review de novo a district 3

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record, as to whether Presstek has failed, neglected, or refused to
arbitrate within the meaning of 9 U.S.C. § 4. We do not resolve
that question, or whether this requirement is jurisdictional in
nature, or whether the requirement under 9 U.S.C. § 4 applies at
all in the context of the New York Convention. We affirm on
different grounds.
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court's refusal to compel arbitration. InterGen N.V. v. Grina, 344
F.3d 134, 141 (1st Cir. 2003). We review the denial of the motion
to reconsider for abuse of discretion. Aybar v. Crispin-Reyes, 118
F.3d 10, 15 (1st Cir. 1997).
A. Propriety of the Original Order of Dismissal
1. Inability to Grant the Relief Requested
Marks' argument that the district court erred in holding
that the relief Marks sought was unavailable is largely based on
Marks' reading of the October 21, 2003 letter from the PCA, which
was rejected by the district court. Marks argues that the district
court misconstrued the PCA letter, and that the correct reading is
"that the PCA invited the parties to complete the administration of
the case (1) if they stipulate to the UNCITRAL Rules, or, (2) if a
court of competent jurisdiction . . . interpreted the arbitration
provision of their Agreement (no matter what jurisdiction, venue or
rules the Court designates under the agreement)." (emphasis
added).
Marks' reading of the PCA letter is strained at best.
The letter states in clear terms that the PCA would be competent to
act in these circumstances "only when parties to a contract have

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agreed that disputes in relation to that contract shall be referred
to arbitration under the UNCITRAL Arbitration Rules." (emphases
added). Indeed, Marks put into the record the published procedural
guidelines of the PCA, which support the court's reading: the
guidelines state that "[t]he request for designation of an
appointing authority . . . should be accompanied by . . . [a] copy
of the arbitration clause or agreement establishing the
applicability of the UNCITRAL Arbitration Rules." (emphasis added)
The district court properly rejected Marks' reading of
the letter. It did not clearly err in concluding that the only
relief Marks had sought, prior to its motion for reconsideration,
was arbitration before the PCA under the American Arbitration Act's
International Rules. Nor did the court err in finding that that
relief was unavailable, or in dismissing the petition on that
ground. There was simply no basis, given the PCA's letter, for the
district court to order arbitration before the PCA under any set of
rules other than the UNCITRAL Arbitration Rules. Marks has never
suggested the PCA was a party or that the court could order the PCA
to do that which it already said it had no authority to do.
The district court framed the question as one of
mootness. Mootness doctrine, in the Article III case or
controversy sense, may be an imprecise fit to the situation here,
but captures the idea that courts do not consider abstract issues.
"[M]ootness doctrine is rooted largely in the idea that courts,

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because of their distinct institutional competence and role, should
not decide abstract questions of law divorced from real factual
controversies." Horizon Bank & Trust Co. v. Massachusetts, 391
F.3d 48, 55 (1st Cir. 2004). It is sufficient to simply frame the
question as whether the district court could have afforded the
relief for which Marks had asked. See Church of Scientology v.
United States, 506 U.S. 9, 12 (1992) ("[I]f . . . it [is]
impossible for the court to grant 'any effectual relief whatever'
to a prevailing party, the appeal must be dismissed." (quoting
Mills v. Green, 159 U.S. 651, 653 (1895))); see also Raytheon Co.
v. Ashborn Agencies, Ltd., 372 F.3d 451 (D.C. Cir. 2004)
(dismissing petition to compel arbitration where there was no
Article III standing, in part, because the requested relief would
not alleviate the claimed injury-in-fact).
2. Marks' Request for a Hearing
Marks argues that it had requested a hearing in its
petition to compel arbitration, and that the court was obligated,
as an initial matter, to hold a hearing once the petition was
filed. It relies on, 9 U.S.C. § 4, which provides:
The court shall hear the parties, and upon
being satisfied that the making of the
agreement for arbitration or the failure to
comply therewith is not in issue, the court
shall make an order directing the parties to
proceed to arbitration in accordance with the
terms of the agreement. . . . If the making of
the arbitration agreement or the failure,
neglect, or refusal to perform the same be in

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issue, the court shall proceed summarily to
the trial thereof.
The argument is based on the unwarranted assumption that
Marks' petition had sought relief which the district court could
provide.
Moreover, even in its own terms, the argument is
unpersuasive. Initially, it is not clear that under 9 U.S.C. § 4,
an evidentiary hearing is required. Marks has assumed that the
"shall hear the parties" statement in 9 U.S.C. § 4 refers to a live
evidentiary hearing. That may not be so. Rather, a "hearing" on
the papers may be all that is required. See Cincinnati Gas & Elec.
Co. v. Benjamin F. Shaw Co., 706 F.2d 155, 159 (6th Cir. 1983); cf.
United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 240 (1973)
(holding, under the Administrative Procedure Act, that "the term
'hearing' as used therein does not necessarily embrace either the
right to present evidence orally and to cross-examine opposing
witnesses, or the right to present oral argument to the agency's
decisionmaker").
But even indulging Marks' assumption that 9 U.S.C. § 4 is
satisfied only by an evidentiary hearing, such a hearing is
required only if there is a genuine issue of material fact for
which a hearing would be necessary. See Am. Int'l Specialty Lines
Ins. Co. v. Elec. Data Sys. Corp., 347 F.3d 665, 671 (7th Cir.
2003) ("A trial to determine arbitrability is required, however,
only if the issue that an evidentiary hearing would resolve is

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fairly contestable."); Cincinnati Gas & Elec. Co., 706 F.2d at 159;
cf. Mowbray v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 795
F.2d 1111, 1115 n.7 (1st Cir. 1986) (deciding whether an agreement
to arbitrate existed under 9 U.S.C. § 4 where there had been "no
request for an evidentiary hearing and no dispute regarding the
moving party's factual allegations"). Requiring the district court
to hold a hearing when there is no genuine issue of material fact
would "defeat[] an essential goal of arbitration, which is the
simplification and expedition of dispute resolution." Am. Int'l
Specialty Lines, 347 F.3d at 671.
Here, there was no genuine issue regarding "the making of
the agreement for arbitration" or "the failure to comply
therewith." The issue concerned the inability of the district
court to grant the relief Marks stated it was seeking --
arbitration at the PCA under the American Arbitration Act's
International Rules -- because the requested relief would not
resolve the dispute.
B. Arguments in Motion for Reconsideration Seeking
Arbitration at a Different Forum
Even after the district court made clear, in its August
9 order, its concerns about its inability to grant the relief
sought, Marks did nothing in its filings prior to the September 20
order to demonstrate that it was seeking relief that the district
court could grant.

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Instead, Marks waited until after the district court had
ruled against it on September 20, and then attempted to alter
course in its motion for reconsideration, from seeking arbitration
at the PCA under the American Arbitration Act's International
Rules, to seeking arbitration at some other forum or under some
other set of arbitration rules, and requesting a hearing to sort
out the possibilities. Marks says this is acceptable because its
petition said in the prayer for relief that it was seeking "such
other and further relief as the Court deems appropriate and just."
Not so. That does not explain why Marks did not make the argument
after the court first raised its concerns. In any event, the
catch-all provision, standing alone, does not give notice that
Marks' theory was different than that articulated in the rest of
the complaint. A trial court is not required to guess what relief
a party wants or why it wants it.
These new arguments were made clear for the first time in
the motion for reconsideration, and the "general rule" for motions
for reconsideration under Fed. R. Civ. P. 59(e) "is that the moving
party must 'either clearly establish a manifest error of law or
must present newly discovered evidence.'" Marie v. Allied Home
Mortgage Corp., 402 F.3d 1, 7 n.2 (1st Cir. 2005) (quoting
Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 143, 146 n.2 (1st
Cir. 2004)). A motion for reconsideration "does not provide a
vehicle for a party to undo its own procedural failures and it

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certainly does not allow a party to introduce new evidence or
advance arguments that could and should have been presented to the
district court prior to the judgment." See Emmanuel v. Int'l Bhd.
of Teamsters, Local Union No. 25, 426 F.3d 416, 422 (1st Cir. 2005)
(internal quotation marks omitted) (quoting Aybar, 118 F.3d at 16).
Under this general rule, Marks' attempt to change course
fails; the new arguments Marks raised in its motion for
reconsideration could have easily been presented to the district
court prior to its September 20, 2005 order dismissing the
petition, but were not. See Cozza v. Network Assocs., Inc., 362
F.3d 12, 16 (1st Cir. 2004) (holding that party could not bring a
successive interlocutory appeal of a denial of a motion to compel
arbitration "based upon the same arguments . . . it could have
appealed earlier, but did not").
Marks points to the general federal policy in favor of
arbitration, the FAA, and the New York Convention. It argues that
the district court was required to overlook the failings of Marks'
petition and nonetheless try to find a different forum and possibly
different rules for the arbitration, and to hold an evidentiary
hearing under 9 U.S.C. § 4 in order to do so. In essence, Marks
argues that the policies in favor of arbitration are so strong that
they trump the normal operation of the Federal Rules of Civil
Procedure. That is not so.

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Marks relies on Chapter One of the FAA, 9 U.S.C. § 4,
quoted above. Marks argues that under this provision, the court
was required to hold a hearing or a trial to determine which agency
should preside and pursuant to what rules. This argument was first
made clear in the motion for reconsideration, and fails under the
general rule that arguments that could have been raised before may
not be raised for the first time in a motion for reconsideration.
Marks has provided no authority that 9 U.S.C. § 4, or any other
provision of the FAA, creates an exception to this general rule.
Marks also relies on the New York Convention. It points
to cases which set out a four-part test for determining whether an
international arbitration agreement can be enforced by a federal
court under the New York Convention. See DiMercurio v. Sphere
Drake Ins., PLC, 202 F.3d 71, 74 & n.2 (1st Cir. 2000); Ledee, 684
F.2d at 186-87. Marks argues that the agreement here meets this
four-part test and that, therefore, the court must order
arbitration unless there is a finding that the arbitration
provision is "null and void, inoperative or incapable of being
performed." DiMercurio, 202 F.3d at 74 (quoting New York
Convention, supra, art. II, § 3); see also Intergen N.V., 344 F.3d
at 141. The argument is a non sequitur: the four-part test is used
to determine whether a particular arbitration agreement falls under

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The test used is as follows: "(1) Is there an agreement in 4
writing to arbitrate the subject of the dispute? (2) Does the
agreement provide for arbitration in the territory of a signatory
of the Convention? (3) Does the agreement arise out of a legal
relationship, whether contractual or not, which is considered as
commercial? (4) Is a party to the agreement not an American
citizen, or does the commercial relationship have some reasonable
relation with one or more foreign states?" See Ledee, 684 F.2d at
186-87 (internal citations omitted).
-22-
the terms of the New York Convention. The issue here is not 4
whether the agreement falls under the Convention, but whether the
relief initially requested by Marks was available, and whether
Marks' attempt to change its position on a motion for
reconsideration should be allowed, despite the normal rules of
litigation. The New York Convention and cases applying the
Convention do not answer that question.
In a last-ditch effort to save itself from dismissal,
Marks turns to the broad federal policy in favor of arbitration,
see Moses H. Cone Mem'l Hosp. v. Mercury Constr. Co., 460 U.S. 1,
24-25 (1983), to support its argument that it should be allowed a
hearing to sort out the appropriate forum and rules for the
arbitration. The Supreme Court has noted that the policy favoring
arbitration "applies with special force in the field of
international commerce." See Restoration Pres. Masonry Inc. v.
Grove Eur. Ltd., 325 F.3d 54, 60 (1st Cir. 2003) (internal
quotation marks omitted) (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985)).

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-23-
But the broad policy favoring arbitration -- even in the
context of international arbitration -- does not create an
exception to the general rule that a motion to reconsider does not
allow a party "to introduce new evidence or advance arguments that
could and should have been presented to the district court prior to
the judgment." Aybar, 118 F.3d at 16. The goal of the FAA was "to
make arbitration agreements as enforceable as other contracts, but
not more so." Paul Revere Variable Annuity Ins. Co. v.
Kirschhofer, 226 F.3d 15, 25 (1st Cir. 2000) (internal quotation
marks omitted) (quoting Prima Paint Corp. v. Flood & Conklin Mfg.
Co., 388 U.S. 395, 404 n.12 (1967)); see also Volt Info. Scis.,
Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468,
478 (1989) ("[The FAA] simply requires courts to enforce privately
negotiated agreements to arbitrate, like other contracts, in
accordance with their terms."). "It follows inexorably from that
statement that the principle of resolving doubts in favor of
arbitration is 'subject to constraints.'" Paul Revere, 226 F.3d at
15 (quoting Coady v. Ashcraft & Gerel, 223 F.3d 1, 9 (1st Cir.
2000)); see also Restoration Pres. Masonry, 325 F.3d at 60 ("The
policy in favor of arbitration does not supersede basic contract
principles, however.").
Indeed, the reasons upon which the federal policies
regarding international arbitration are based tend to work against
Marks' position:

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-24-
Arbitration clauses were not meant to be
another weapon in the arsenal for imposing
delay and costs in the dispute resolution
process. . . . In the context of
international contracts, the opportunities for
increasing the cost, time, and complexity of
resolving disputes are magnified by the
presence of multiple possible fora, each with
its own different substantive rules,
procedural schematas, and legal cultures.
This is fertile ground for manipulation and
mischief, and acceptance of [plaintiff's]
arguments would lead to the very problems the
[New York] Convention sought to avoid.
Menorah Ins. Co. v. INX Reinsurance Corp., 72 F.3d 218, 223 (1st
Cir. 1995); see id. at 222 ("[U]ltimately, the strong policy
reasons favoring arbitration and underlying the adoption of the
Convention would be undercut, not served, by acceptance of
[plaintiff's] position."); see also Weiner v. Gutfreund (In re
Salomon Inc. Shareholders' Derivative Litigation), 68 F.3d 554,
557-58 (2d Cir. 1995) ("Although the federal policy favoring
arbitration obliges us to resolve any doubts in favor of
arbitration, we cannot compel a party to arbitrate a dispute before
someone other than the NYSE when that party had agreed to arbitrate
disputes only before the NYSE and the NYSE, in turn, exercising its
discretion under its Constitution, has refused the use of its
facilities to arbitrate the dispute in question.").
Marks made a strategic choice (and continued to make the
strategic choice) to rely on its reading of the PCA letter and seek
arbitration at the PCA under the American Arbitration Act's (or
Association's) International Rules, and it must live with the

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-25-
consequences of that choice. See Paul Revere Variable Annuity Ins.
Co. v. Zang, 248 F.3d 1, 6 (1st Cir. 2001) ("Where a party makes a
considered choice, though it may involve some calculated risk, he
'cannot be relieved of such a choice because hindsight seems to
indicate to him' that, as it turns out, his decision was 'probably
wrong.'" (quoting Ackermann v. United States, 340 U.S. 193, 198
(1950))). Had Marks chosen a different strategy, a different
outcome may have been warranted. But to allow Marks to avoid the
consequences of its strategic decision would lead to delay and
manipulation.
III.
The district court's dismissal of the petition to compel
arbitration is affirmed. Costs are awarded to the defendant.
Concurrence follows.

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-26-
YOUNG, District Judge, (Concurring). This seems to me an
important decision. I join its reasoning and result, writing
separately simply to point out that the result is imposed on a
record somewhat more ambiguous than the majority lets on. Marks
petitioned for an order "direct[ing] that arbitration proceed in
the manner set forth in the Agreement: in The Hague, and that the
Court order such arbitration to proceed under the American
Arbitration Act's International Rules." App. at 15. Since there
is more than one arbitral body in The Hague -- a fact the majority
does recognize, see supra at 9 -- it is too much of a stretch for
the majority to say "Marks sought an order to compel arbitration of
the dispute before the PCA . . . ." Supra at 3 (emphasis added);
see also supra at 18. Indeed, Marks had argued in its memorandum
addressing the district court's mootness concerns that arbitration
could be proper "at another arbitral body".
Contrary to the majority's description, it was the
district judge who drew this inference from Marks's vague pleading,
which itself did not expressly request the needed interpretation of
the ambiguous arbitration clause. Nevertheless, since the district
court's conclusion was warranted based the entirety of the record
and filings, and because I would affirm the orders of the district
court based thereon (even in the absence of any oral hearing), I
concur.

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