Clms Management Services Limited Partnership; Roundhill I, Lp v. Amwins Brokerage of Georgia, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLMS MANAGEMENT SERVICES
LIMITED PARTNERSHIP;
ROUNDHILL I, LP,
Plaintiffs-Appellants,
v.
AMWINS BROKERAGE OF
GEORGIA, LLC; AMRISC, LLC;
CJW & ASSOCIATES, INC.; CERTAIN
UNDERWRITERS AT LLOYD’S,
Defendants-Appellees.
No. 20-35428
D.C. No.
3:19-cv-05785-
RBL
OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted April 15, 2021
Seattle, Washington
Filed August 12, 2021
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 2
SUMMARY*
Arbitration / McCarran-Ferguson Act
The panel affirmed the district court’s order granting a
motion to compel arbitration in plaintiffs’ diversity insurance
coverage action.
The insurers filed a motion to compel arbitration, arguing
that the policy issued to plaintiffs had an arbitration provision
that fell within the scope of the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, a
multilateral treaty. Plaintiffs argued that the arbitration
provision was unenforceable because Washington law
prohibited the enforcement of arbitration clauses in insurance
contracts and the McCarran-Ferguson Act operated to
reverse-preempt the Convention, such that Washington law
controlled.
The panel held that the text of Article II, Section 3 of the
Convention and the Convention’s relevant drafting and
negotiation history led to the conclusion that Article II,
Section 3 was self-executing, and it required enforcement of
the parties’ arbitration agreement. The panel further
concluded that the Convention was not reverse-preempted by
Wash. Rev. Code § 48.18.200. Because the Convention was
not an “Act of Congress” subject to reverse-preemption by
the McCarran-Ferguson Act, the district court correctly
granted defendants’ motion to compel arbitration.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 3
COUNSEL
Michael A. Barcott (argued) and Daniel P. Barcott, Holmes
Weddle & Barcott, Seattle, Washington, for Plaintiffs-
Appellants.
Colleen V. McCaffrey (argued) and Shannon M. Benbow,
Wood Smith Henning & Berman LLP, Seattle, Washington;
Jeffrey S. Weinstein, Mound Cotton Wollan & Greengrass
LLP, New York, New York; for Defendants-Appellees.
David S. Watnick, Covington & Burling LLP, San Francisco,
California; Mark W. Mosier and Jordan V. Hill, Covington &
Burling LLP, Washington, D.C.; for Amicus Curiae United
Policyholders.
OPINION
CHRISTEN, Circuit Judge:
This appeal presents an issue of first impression in this
circuit that lies at the intersection of international, federal,
and state law: whether the McCarran-Ferguson Act,
15 U.S.C. §§ 1011–15, allows a Washington statute to
reverse-preempt the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, a multilateral
treaty. We conclude that the relevant provision of the
Convention is self-executing, and therefore not an “Act of
Congress” subject to reverse-preemption by the McCarran-
Ferguson Act. Accordingly, we affirm the district court’s
order compelling arbitration.

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 4
I
In 2016, Plaintiffs CLMS Management Services Limited
Partnership (CLMS) and Roundhill I, LP, domestic entities,
entered into an insurance contract (the Policy) through
defendant Amrisc, LLC. The Policy provided coverage for a
townhome complex in Texas that Roundhill owns and CLMS
operates. The relevant portion of the Policy was underwritten
by defendants Certain Underwriters at Lloyd’s London
(Lloyd’s), members of a foreign organization, and it contains
a mandatory arbitration provision:
All matters in difference between the Insured
and the Companies (hereinafter referred to as
“the parties”) in relation to this insurance,
including its formation and validity, and
whether arising during or after the period of
this insurance, shall be referred to an
Arbitration Tribunal in the matter hereinafter
set out . . . .
The seat of the Arbitration shall be in New
York and the Arbitration Tribunal shall apply
the law of New York as the proper law of this
insurance. . . .
The award of the Arbitration Tribunal shall be
in writing and binding upon the parties who
covenant to carry out the same. If either of
the parties should fail to carry out any award
the other may apply for its enforcement to a
court of competent jurisdiction in any territory
in which the party in default is domiciled or
has assets or carries on business.

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 5
In August 2017, Hurricane Harvey caused an estimated
$5,660,000 in damages to the townhome complex. Plaintiffs
submitted a claim under the Policy, but in May 2018
defendant CJW & Associates (CJW), a third-party claims
administrator for Lloyd’s, responded that the Policy’s
deductible was $3,600,000.
Plaintiffs filed a complaint in the Western District of
Washington asserting three claims: breach of contract, failure
to communicate policy changes, and unfair claims handling
practices in violation of Washington law.1 The primary
allegation underlying plaintiffs’ claims is that “[u]nder the
Policy, the deductible should be $600,000, not $3,600,000.”
Lloyd’s and CJW filed a motion to compel arbitration and
stay proceedings in the district court. The motion argued that
the Policy’s arbitration provision falls within the scope of the
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the Convention), by which the United States
committed to enforce arbitration agreements between foreign
and domestic entities. Lloyd’s and CJW argued that the
Convention required the district court to refer plaintiffs’
claims to arbitration.
Plaintiffs did not contest that the arbitration provision
falls within the Convention’s scope, but argued the provision
is unenforceable because Washington law specifically
prohibits the enforcement of arbitration clauses in insurance
contracts and the McCarran-Ferguson Act operates to
reverse-preempt the Convention, such that Washington law
1 For purposes of this appeal, the parties do not dispute that
Washington law applies to the merits of these claims.

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 6
controls. Therefore, plaintiffs argued, the arbitration
provision is unenforceable.
The district court granted Lloyd’s and CJW’s motion.
The court reasoned that Article II, Section 3 of the
Convention is self-executing, and therefore is not an “Act of
Congress” subject to reverse-preemption pursuant to the
McCarran-Ferguson Act. The district court held that it was
required to enforce the arbitration provision pursuant to the
Convention.
The court recognized that the parties’ dispute presents a
question of first impression in this circuit, and certified its
order for interlocutory review. A motions panel of our court
granted plaintiffs’ petition for permission to appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1292(b).
II
We review de novo a district court’s order compelling
arbitration. Bushley v. Credit Suisse First Boston, 360 F.3d
1149, 1152 (9th Cir. 2004). The district court explained that
enforcement of the arbitration clause turns on a clash between
two sources of law: a Washington statute that prohibits
mandatory pre-dispute arbitration clauses in insurance
contracts, and Article II, Section 3 of the Convention, which,
with few exceptions, requires United States courts to enforce
written arbitration agreements like the one at issue here,
between foreign and domestic entities.
As the district court aptly observed, the McCarran-
Ferguson Act lies “[a]t the fulcrum” of Washington law and
the Convention. In most instances, the Supremacy Clause
mandates that a state law gives way to conflicting federal law,

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 7
but the McCarran-Ferguson Act “provides that state insurance
law preempts conflicting federal law.” Thus, the question
central to this appeal is whether Washington law, by
operation of the McCarran-Ferguson Act, reverse-preempts
the Convention.
Wash. Rev. Code § 48.18.200 provides:
(1) . . . [N]o insurance contract delivered or
issued for delivery in this state and covering
subjects located, resident, or to be performed
in this state, shall contain any condition,
stipulation, or agreement . . .
(b) depriving the courts of this state of the
jurisdiction of action against the insurer . . . .
(2) Any such condition, stipulation, or
agreement in violation of this section shall be
void, but such voiding shall not affect the
validity of the other provisions of the contract.
The Washington Supreme Court has interpreted § 48.18.200
to “prohibit[] binding arbitration agreements in insurance
contracts,” and held that pre-dispute binding arbitration
provisions in insurance contracts are unenforceable. State,
Dep’t of Transp. v. James River Ins. Co., 292 P.3d 118, 123
(Wash. 2013). We are bound by the Washington Supreme
Court’s interpretation of § 48.18.200. See Ticknor v. Choice
Hotels Int’l, Inc., 265 F.3d 931, 939 (9th Cir. 2001)
(“[F]ederal courts are bound by the pronouncements of the
state’s highest court on applicable state law.”).

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 8
The Convention is a multilateral treaty crafted during a
1958 United Nations conference. ESAB Grp., Inc. v. Zurich
Ins. PLC, 685 F.3d 376, 381 (4th Cir. 2012). The United
States participated in the Convention’s drafting, but did not
accede to the Convention until 1970. GE Energy Power
Conversion Fr. SAS, Corp. v. Outokumpu Stainless USA,
LLC, 140 S. Ct. 1637, 1644 (2020). Article II of the
Convention provides in full:
1. Each Contracting State shall recognize an
agreement in writing under which the parties
undertake to submit to arbitration all or any
differences which have arisen or which may
arise between them in respect of a defined
legal relationship, whether contractual or not,
concerning a subject matter capable of
settlement by arbitration.
2. The term “agreement in writing” shall
include an arbitral clause in a contract or an
arbitration agreement, signed by the parties or
contained in an exchange of letters or
telegrams.
3. The court of a Contracting State, when
seized of an action in a matter in respect of
which the parties have made an agreement
within the meaning of this article, shall, at
the request of one of the parties, refer the
parties to arbitration, unless it finds that the

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 9
said agreement is null and void, inoperative or
incapable of being performed.2
The Convention art. II, June 10, 1958, 21 U.S.T. 2517
(emphasis added). “The Convention obligates signatories
(1) to recognize and enforce written agreements to submit
disputes to foreign arbitration and (2) to enforce arbitral
awards issued in foreign nations.” ESAB Group, 685 F.3d
at 381.
Congress amended Title 9 of the U.S. Code to
accommodate implementation of the Convention. The
Convention Act, 9 U.S.C. § 201 et seq., states that the
Convention “shall be enforced in United States courts in
accordance with this chapter.” 9 U.S.C. § 201. As the
Supreme Court has explained, the Convention Act also
“grants federal courts jurisdiction over actions governed by
the Convention, § 203; establishes venue for such actions,
§ 204; authorizes removal from state court, § 205; and
empowers courts to compel arbitration, § 206.” GE Energy,
140 S. Ct. at 1644. If the Convention and Washington state
law were the only provisions in play, the parties agree that
Washington’s law would be preempted pursuant to ordinary
Supremacy Clause principles. U.S. Const. art. VI, cl. 2
(“This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land.” (emphasis added)).
2 The exception that arbitration agreements need not be enforced if
they are “null and void, inoperative or incapable of being performed” is
not at issue here.

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 10
But in response to the Supreme Court’s decision in United
States v. South-Eastern Underwriters Ass’n, 322 U.S. 533,
552–53 (1944), that insurance is subject to federal regulation
under the Commerce Clause, Congress enacted the
McCarran-Ferguson Act, 15 U.S.C. §§ 1011–15. U.S. Dep’t
of Treasury v. Fabe, 508 U.S. 491, 499 (1993). The
McCarran-Ferguson Act first declares that “the continued
regulation and taxation by the several States of the business
of insurance is in the public interest, and that silence on the
part of the Congress shall not be construed to impose any
barrier to the regulation or taxation of such business by the
several States.” 15 U.S.C. § 1011. The portion of the Act at
the center of this appeal provides that “[n]o Act of Congress
shall be construed to invalidate, impair, or supersede any law
enacted by any State for the purpose of regulating the
business of insurance . . . unless such Act specifically relates
to the business of insurance.” 15 U.S.C. § 1012(b).
Thus, the McCarran-Ferguson Act “transformed the legal
landscape by overturning the normal rules of pre-emption.”
Fabe, 508 U.S. at 507. “The first clause of [§ 1012(b)]
reverses [the normal preemption rules] by imposing what is,
in effect, a clear-statement rule, a rule that state laws enacted
‘for the purpose of regulating the business of insurance’ do
not yield to conflicting federal statutes unless a federal statute
specifically requires otherwise.” Id.
III
We begin by considering whether it is the Convention or
the Convention Act that compels enforcement of the
arbitration agreement. Defendants argue that Article II,
Section 3 of the Convention is self-executing, and it is
therefore the Convention that compels enforcement. More

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 11
specifically, they contend that because a self-executing
multilateral treaty is not an “Act of Congress,” the
Convention preempts Washington state law. Plaintiffs
counter that the Convention is not self-executing, and argue
it is enforceable as domestic law only through the Convention
Act. From there, plaintiffs rely on the McCarran-Ferguson
Act to argue that because the Convention Act does not
specifically relate to the business of insurance, it is reverse-
preempted by Wash. Rev. Code § 48.18.200, and the parties’
arbitration agreement is unenforceable.
The Supreme Court has “long recognized the distinction
between treaties that automatically have effect as domestic
law, and those that—while they constitute international law
commitments—do not by themselves function as binding
federal law.” Medellin v. Texas, 552 U.S. 491, 504 (2008).
A treaty is self-executing and has automatic force as domestic
law “when it ‘operates of itself without the aid of any
legislative provision.’” Id. at 505 (quoting Foster v. Neilson,
27 U.S. 253, 254 (1829), overruled on other grounds by
United States v. Percheman, 32 U.S. 51 (1833)). “When, in
contrast, ‘[treaty] stipulations are not self-executing they can
only be enforced pursuant to legislation to carry them into
effect.’” Id. (alteration in original) (quoting Whitney v.
Robertson, 124 U.S. 190, 194 (1888)). We have said that,
“[a]t its core, the question of self-execution addresses
whether a treaty provision is directly enforceable in domestic
courts.” Republic of Marshall Islands v. United States,
865 F.3d 1187, 1193 (9th Cir. 2017).
“The interpretation of a treaty, like the interpretation of a
statute, begins with its text,” Medellin, 552 U.S. at 506, and
“[s]ome treaties reveal their self-execution by expressly
calling for direct judicial enforcement,” Marshall Islands,

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 12
865 F.3d at 1194. Applying this “time-honored textual
approach,” Medellin, 552 U.S. at 514, we conclude Article II,
Section 3 of the Convention is self-executing.3
In Medellin, the Supreme Court considered whether a
judgment of the International Court of Justice (ICJ) was
directly enforceable as domestic law. 552 U.S. at 498. The
Court explained that “[t]he obligation on the part of signatory
nations to comply with ICJ judgments derives . . . from
Article 94 of the United Nations Charter,” which provides
that “[e]ach Member of the United Nations undertakes to
comply with the decision of the [ICJ] in any case to which it
is a party.” Id. at 508 (alterations in second quotation in
original) (emphasis omitted) (quoting 59 Stat. 1051). The
Court concluded Article 94 is non-self-executing, and
therefore ICJ decisions are not automatically enforceable,
because Article 94 “is not a directive to domestic courts” and
“does not provide that the United States ‘shall’ or ‘must’
comply with an ICJ decision, nor indicate that the Senate that
ratified the U.N. Charter intended to vest ICJ decisions with
immediate legal effect in domestic courts.” Id. Instead, the
Court explained that Article 94 “call[s] upon governments to
take certain action” and “reads like ‘a compact between
independent nations’ that ‘depends for the enforcement of its
provisions on the interest and the honor of the governments
which are parties to it.’” Id. at 508–09 (quoting Comm. of
U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929,
3 Treaties may contain both self-executing and non-self-executing
provisions. Lidas, Inc. v. United States, 238 F.3d 1076, 1080 (9th Cir.
2001); Restatement (Third) Foreign Relations Law of the United States
§ 111 cmt. h (1987) (“Some provisions of an international agreement may
be self-executing and others non-self-executing.”).

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 13
938 (D.C. Cir. 1988); Edye v. Robertson, 112 U.S. 580, 598
(1884)).
Our court has relied on similar textual clues to conclude
that Article VI of the Treaty on the Non-Proliferation of
Nuclear Weapons is non-self-executing. Marshall Islands,
865 F.3d at 1193–99. That treaty provision states that the
signatories “undertake[] to pursue negotiations in good faith
on effective measures relating to cessation of the nuclear
arms race at an early date and to nuclear disarmament, and on
a treaty on general and complete disarmament under strict
and effective international control.” Treaty on the Non-
Proliferation of Nuclear Weapons art. VI, July 1, 1968,
21 U.S.T. 483. The court in Marshall Islands reasoned that
Article VI is non-self-executing in part because it is neither
directed to domestic courts nor calls for immediate judicial
enforcement. 865 F.3d at 1195. Rather, the text of Article VI
is a “prime example of language that offers no ‘directive to
domestic courts’ and instead calls for future action by a
political branch.” Id. (quoting Medellin, 552 U.S. at 508).
Plaintiffs argue that, like the provisions at issue in
Medellin and Marshall Islands, Article II, Section 3 is merely
a “general proclamation” that “provides no additional
guidance as to the mechanism for enforcing [] an agreement
to arbitrate.” We disagree. Article II, Section 3 of the
Convention stands in stark contrast to the treaty provisions at
issue in Medellin and Marshall Islands. Rather than speaking
in broad, aspirational terms, it provides that “[t]he court of a
Contracting State, when seized of an action in a matter in
respect of which the parties have made an agreement within
the meaning of this article, shall, at the request of one of the
parties, refer the parties to arbitration . . . .” 21 U.S.T. 2517
(emphases added). This provision is addressed directly to

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 14
domestic courts, mandates that domestic courts “shall”
enforce arbitration agreements, and “leaves no discretion to
the political branches of the federal government whether to
make enforceable the agreement-enforcing rule it prescribes.”
Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s,
London, 587 F.3d 714, 735 (5th Cir. 2009) (en banc)
(Clement, J., concurring). A straightforward application of
the textual analysis outlined in Medellin compels the
conclusion that Article II, Section 3 is self-executing; it is
plainly unlike the types of “general proclamations” at issue in
Medellin and Marshall Islands.
Though the text of Article II, Section 3 leaves little doubt
that the provision is self-executing, “it is our responsibility to
give the specific words of the treaty a meaning consistent
with the shared expectations of the contracting parties.” Air
France v. Saks, 470 U.S. 392, 399 (1985). Accordingly, we
also “look to the executive branch’s interpretation . . . , the
views of other contracting states, and the treaty’s negotiation
and drafting history in order to ensure that [our] interpretation
of the text is not contradicted by other evidence of intent.”
Patterson v. Wagner, 785 F.3d 1277, 1282 (9th Cir. 2015)
(citing Abbott v. Abbott, 560 U.S. 1, 15–20 (2010)).
Prior to the United States’ accession to the Convention,
President Lyndon Baines Johnson transmitted the Convention
to the Senate for its advice and consent. Message from the
President of the United States Transmitting the Convention,
S. Exec. Doc. E 90-2 (Apr. 24, 1968).4 President Johnson
explained that the Convention would “facilitate the
recognition and enforcement by foreign courts of arbitral
4 Available at https://cdn.arbitration-icca.org/s3fs-
public/document/media_document/038.pdf.

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 15
awards granted in the United States as well as similar action
by our courts with respect to foreign arbitral awards.” Id.
at 1. President Johnson further explained that before the
United States would accede to the Convention, “[c]hanges in
Title 9 (Arbitration) of the United States Code will be
required,” id., and at Senate hearings addressing the
Convention “the witness from the Department [of State]
informed the Foreign Relations Committee that deposit of the
U.S. Instrument of Accession would be deferred until
Congress enacted the necessary implementing legislation,”
H.R. Rep. No. 91-1181, at 3603 (1970).
This historical record shows that the executive believed
some changes in federal law were necessary to accommodate
and implement at least some portions of the Convention, but
plaintiffs point to no evidence that the Convention’s drafters
and negotiators believed Article II, Section 3, specifically,
was not self-executing. Indeed, the Convention Act’s other
provisions largely address procedural and logistical matters,
such as federal courts’ jurisdiction to hear claims arising
under the Convention and the proper venue for such claims.
See GE Energy, 140 S. Ct. at 1644; Gary B. Born, The New
York Convention: A Self-Executing Treaty, 40 Mich. J. Int’l
L. 115, 147 (2018) (arguing the enactment of the Convention
Act shows “only that Congress wanted to ensure the effective
and efficient enforcement of the Convention’s self-executing
substantive terms in U.S. courts” by providing “procedural
and ancillary mechanisms” that “could not sensibly” be
addressed by a multilateral treaty with 159 Contracting
States). The Supreme Court has “never provided a full
explanation of the basis for [its] practice of giving weight to
the Executive’s interpretation of a treaty” or “delineated the
limitations of this practice, if any,” GE Energy, 140 S. Ct.
at 1647, and President Johnson’s message is, at best,

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 16
inconclusive regarding whether Article II, Section 3 is self-
executing. We conclude that President Johnson’s message
does not override the plain text of the Convention.
Moreover, in a brief to the Supreme Court, the Solicitor
General has more recently expressed the view that Article II,
Section 3 of the Convention is self-executing. In Safety
National, the Fifth Circuit, sitting en banc, concluded that the
McCarran-Ferguson Act does not reverse-preempt Article II,
Section 3 of the Convention but did not decide whether that
provision is self-executing. See 587 F.3d at 731 (“[W]e
conclude that implemented treaty provisions, self-executing
or not, are not reverse-preempted by state law pursuant to the
McCarran-Ferguson Act.”). The Safety National plaintiffs
petitioned for certiorari, and the Supreme Court called for the
Solicitor General’s views. The Solicitor argued that Article
II, Section 3 of the Convention contains “precisely the
elements” the Supreme Court was looking for in Medellin,
namely, mandatory language directed to courts rather than
aspirational language directed to the political branches. Brief
for the United States as Amicus Curiae, La. Safety Ass’n of
Timbermen - Self Insurers Fund v. Certain Underwriters at
Lloyd’s, London, No. 09-945, 2010 WL 3375626 at *8–9
(2010). The Solicitor General argued “the fact that domestic
legislation may have been necessary to clarify jurisdiction-
and venue-related issues pertaining to the implementation of
the Convention does not contradict the conclusion that
Article II[, Section 3] is self-executing.” Id. at *11.
Plaintiffs argue that the Supreme Court has identified the
Convention as an example of a non-self-executing treaty. But
for support, plaintiffs point only to the Supreme Court’s
passing reference to the Convention Act in Medellin as an

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 17
example of a statute that implements a treaty. The dicta
plaintiffs rely upon states:
Congress is up to the task of implementing
non-self-executing treaties, even those
involving complex commercial disputes . . .
The judgments of a number of international
tribunals enjoy a different status because of
implementing legislation enacted by
Congress. See, e.g., 22 U.S.C. § 1650a(a)
. . . ; 9 U.S.C. §§ 201–208 (“The [U.N.]
Convention on the Recognition and
Enforcement of Foreign Arbitral Awards of
June 10, 1958, shall be enforced in United
States courts in accordance with this chapter,”
§ 201). Such language demonstrates that
Congress knows how to accord domestic
effect to international obligations when it
desires such a result.
Medellin, 552 U.S. at 521–22. Taken in context, the Court’s
citation to the Convention Act, which includes procedural and
logistical provisions pertaining to subjects like venue and
federal court jurisdiction, does not undermine the self-
executing language of Article II, Section 3. See Safety
National, 587 F.3d at 736 (Clement, J., concurring) (arguing
that Medellin’s “dictum offers little support for the view that
the Convention is non-self-executing in all respects”). Unlike
Article II, the remaining provisions of the Convention do not
impose direct obligations upon domestic courts. See
generally 21 U.S.T. 2517. Medellin does not suggest that all
provisions within the Convention are non-self-executing, and
it makes no mention of Article II, Section 3 at all. Indeed,
relying on Medellin’s passing reference to the Convention

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 18
Act to conclude that Article II, Section 3 is non-self-
executing would contradict Medellin’s own clear direction
that “[t]he interpretation of a treaty . . . begins with its text,”
not the existence of legislation enacted to implement various
treaty provisions. Medellin, 552 U.S. at 506.
The plain text of Article II, Section 3 and the
Convention’s relevant drafting and negotiation history lead us
to conclude that Article II, Section 3 is self-executing. We
therefore conclude it is the Convention itself that requires
enforcement of the parties’ arbitration agreement.
IV
Plaintiffs point to the Second Circuit’s decision in
Stephens v. American International Insurance Co., 66 F.3d 41
(2d Cir. 1995), to caution that the conclusion that Article II,
Section 3 is self-executing creates a circuit split. With
respect, we disagree with the Second Circuit’s interpretation
of the Convention. Stephens was decided more than twenty-
five years ago, before the Supreme Court issued Medellin.
Without the benefit of Medellin’s guidance, the Second
Circuit concluded that the Convention is non-self-executing
but it did not undertake an analysis of the Convention’s text,
drafting and negotiation history, or the views of the
executive. Stephens, 66 F.3d at 45; cf. Medellin, 552 U.S.
at 506–07. Rather, Stephens seemed to rely exclusively on
the existence of the Convention Act to conclude the
Convention is non-self-executing. Stephens, 66 F.3d at 45.
Our conclusion that Article II, Section 3 is self-executing
finds support in the reasoning of the Fourth and Fifth
Circuits. See ESAB Group, 685 F.3d at 387 (acknowledging
there is “much to recommend” the position that Article II,

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 19
Section 3 is self-executing); Safety National, 587 F.3d at 722
(applying the reasoning of Medellin and explaining that “[t]he
Convention expressly states that domestic courts ‘shall’
compel arbitration when requested by a party to an
international arbitration agreement”). Both the Fourth Circuit
and the Fifth Circuit en banc majority stopped short of
deciding whether Article II, Section 3 is self-executing
because they relied on other grounds to conclude the
Convention required enforcement of the arbitration provisions
at issue, but both circuits recognized that Article II, Section
3 is a mandatory directive to domestic courts, and this is an
essential characteristic of self-executing treaties. ESAB
Group, 685 F.3d at 387; Safety National, 587 F.3d at 722.
The conclusions reached in ESAB Group and Safety National
align with our ultimate conclusion: state laws prohibiting
arbitration provisions in insurance contracts do not reverse-
preempt the Convention’s command that domestic courts are
obligated to enforce international arbitration agreements
unless such agreements are null and void, inoperative, or
incapable of being performed. 21 U.S.T. 2517.
V
Having concluded Article II, Section 3 of the Convention
is self-executing and that it alone requires enforcement of the
parties’ arbitration agreement, we must decide whether it is
reverse-preempted by Wash. Rev. Code § 48.18.200, which
renders pre-dispute arbitration agreements in insurance
contracts unenforceable. We conclude the Convention is not
reverse-preempted.
The McCarran-Ferguson Act broadly provides that “[n]o
Act of Congress shall be construed to invalidate, impair, or
supersede any law enacted by any State for the purpose of

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 20
regulating the business of insurance, . . . unless such Act
specifically relates to the business of insurance.” 15 U.S.C.
§ 1012(b). This imposes a clear-statement rule that “state
laws enacted for the purpose of regulating the business of
insurance do not yield to conflicting federal statutes unless a
federal statute specifically requires otherwise.” Fabe,
508 U.S. at 507 (internal quotation marks and citation
omitted).
The parties do not expressly dispute that a multilateral
treaty entered into by the United States, on its own, is not an
“Act of Congress” for purposes of the McCarran-Ferguson
Act, and we agree with the Fifth Circuit that “[t]he commonly
understood meaning of an ‘Act of Congress’ does not include
a ‘treaty.’” Safety National, 587 F.3d at 723. Congress
consists of both the Senate and House of Representatives.
U.S. Const. art. I, § 1. Because treaties require only the
approval of the Senate, U.S. Const. art. II, § 2, cl. 2, a treaty
is more accurately described as an exercise of executive
power constrained by the Constitution, not as an “Act of
Congress.” Indeed, the Supremacy Clause itself distinguishes
between “the Laws of the United States,” which must
comport with the bicameralism and presentment
requirements, see I.N.S. v. Chadha, 462 U.S. 919, 948–49
(1983), and “Treaties,” which need not, U.S. Const. art. II,
§ 2.
The legislative history of the McCarran-Ferguson Act is
consistent with our conclusion that Congress did not intend
the McCarran-Ferguson Act to apply to treaties. In a Senate
debate prior to passage of the Act, Senator Homer Ferguson,
one of the Act’s co-sponsors, explained:

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 21
the purpose of [§ 1012(b)] is very clear, that
Congress did not want at the present time to
take upon itself the responsibility of
interfering with the taxation of insurance or
the regulation of insurance by the States. . . .
If there is on the books of the United States a
legislative act which relates to interstate
commerce, if the act does not specifically
relate to insurance, it would not apply at the
present time. Having passed the bill now
before the Senate, if Congress should
tomorrow pass a law relating to interstate
commerce, and should not specifically apply
the law to the business of insurance, it would
not be an implied repeal of this bill, and this
bill would not be affected, because Congress
had not, under [§ 1012(b)], said that the new
law specifically applied to insurance.
91 Cong. Rec. 481 (1945). This legislative history reinforces
what the text makes clear: an “Act of Congress” within the
meaning of the McCarran-Ferguson Act is a “legislative act”
passed by both houses of Congress. Id.; see Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 428 (2003) (explaining that “a
federal statute directed to implied preemption by domestic
commerce legislation cannot sensibly be construed to address
preemption by executive conduct in foreign affairs”).
Moreover, as the Fourth Circuit observed, construing the
McCarran-Ferguson Act to permit state laws to reverse-
preempt multilateral treaties would frustrate the federal
government’s ability to “speak with one voice when
regulating commercial relations with foreign governments.”
ESAB Group, 685 F.3d at 390 (quoting Michelin Tire Corp.

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CLMS MGMT. SERVS. V. AMWINS BROKERAGE 22
v. Wages, 423 U.S. 276, 285 (1976)). By acceding to the
Convention, “the government has opted to use this voice to
articulate a uniform policy in favor of enforcing agreements
to arbitrate internationally, even when ‘a contrary result
would be forthcoming in a domestic context.’” Id. (quoting
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 629 (1985)). “If the United States is to be able
to gain the benefits of international accords and have a role as
a trusted partner in multilateral endeavors, its courts should
be most cautious before interpreting its domestic legislation
in such a manner as to violate international agreements.”
Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,
515 U.S. 528, 539 (1995). We do not interpret the McCarran-
Ferguson Act to reverse-preempt Article II, Section 3 of the
Convention.
VI
Article II, Section 3 of the Convention on Recognition
and Enforcement of Foreign Arbitral Awards is self-
executing, and it requires enforcement of the parties’
arbitration agreement. Because the Convention is not an “Act
of Congress” subject to reverse-preemption by the McCarran-
Ferguson Act, the district court correctly granted defendants’
motion to compel arbitration.
AFFIRMED.

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