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PLAIN-MEANING: A-BROAD INVESTIGATION

Caroline Savini*

TABLE OF CONTENTS

I. INTRODUCTION ...... 282

II. BACKGROUND ...... 288 A. The Plain-Meaning Rule ...... 291 B. The Eleventh Circuit’s Dissection of the Plain-Meaning Rule...... 296

III. ANALYSIS ...... 303 A. in the United Kingdom and Australia ...... 303 B. The European Union ...... 306 C. in the Interpretation of § 202 ...... 309

* J.D. Candidate, University of Georgia School of , 2018; B.A., University of Georgia, 2015.

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I. INTRODUCTION

Arbitration standards are generally efficient and unified when it comes to diverse parties, but they fall into an obscure realm when considering two United States entities that have some connection abroad. Generally, arbitration measures exist in the form of statutory enactments, which command the way that certain parties eventually resolve disputes. Nonetheless, in order to apply arbitration statutes, courts must first interpret the language of the statute. Although no “one-size-fits-all” approach exists with respect to interpretation, courts apply various legal principles and concepts to determine a statute’s meaning. Most canons of statutory interpretation fall within one of two categories: linguistic or substantive principles.1 Language-based canons act as interpretive concepts for drawing inferences based on customary usage, grammar, and de facto definitions.2 As an example, when evaluating the meaning behind specific terms and phrases, “language canons call for determining the sense in which the terms are being used, that is, whether words or phrases are meant as terms of art with specialized meanings or are meant in the ordinary, ‘dictionary’ sense.”3 This idea, known as the plain-meaning rule, suggests that if a word has a distinct and unambiguous definition, then a court must adopt this meaning of the word when interpreting the statute’s language. Late Supreme Court Justice , known best to the public as a hardline conservative, was better known in the legal world for , a popular school of thought and the distinct manner by which Scalia interpreted statutes.4 Scalia attended Harvard Law School at a time when “legal process,” a movement that emphasized interpreting statutes by drawing a substantial amount of information from legislative history and purpose, had gained massive popularity.5 Nevertheless, Scalia eschewed the legal-process idea of

1 LARRY M. EIG, CONG. RESEARCH SERV., STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS (Dec. 19, 2011), https://www.fas.org/sgp/crs/misc/97-589.pdf. 2 Id. 3 Id. 4 Textualism refers to the interpretation of written law without going beyond the intent of those legislators who made the law. All interpreters of legal text face the problem of reconciling abstract legal theories with concrete human experiences. As a result, it is often impossible to have cases and statutes fit perfectly within the law. See Noah Feldman, Opinion: Scalia’s Classic Textualism Will Be His Legacy, BLOOMBERGVIEW (Feb. 17, 2016), https://www.bloomberg.com/view/articles/2016-02-17/scalia-s-classic-textualism-will-be-his- legacy. See generally Textualism, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining textualism as the idea that the words of a governing text are of paramount concern and that what they fairly convey in their context is what the text means). 5 Feldman, supra note 4.

2017] PLAIN MEANING: A-BROAD INVESTIGATION 283 relying on statutory purpose; after ruling out and Aristotle’s own principle of “attributing rationality to the legislature” as viable methods of interpretation, Scalia shaped his own legal theory of that relies on the text, “nothing more, nothing less.”6 The theory of plain meaning plays a controversial role when interpreting statutes within a treaty whose purpose is to promote uniform and efficient application of the law worldwide. The New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention, is one example of such a treaty. In general, a case covered by this treaty confers federal subject matter jurisdiction upon a district court because such a case is “deemed to arise under the and treaties of the United States.”7 In deciding a motion to compel arbitration, courts will look at the New York Convention and conduct an analysis of the prongs provided to determine whether four jurisdictional pre-requisites are met. The language of the treaty also provides that the Convention shall be enforced by the courts of the United States.8 The Convention further allows for covered arbitration agreements to be removed to federal courts and grants federal courts the authority to compel arbitration pursuant to the Convention.9 A particular section, Agreement or Award Falling Under the Convention, details what arbitration agreements or awards fall under the Convention and subsequently explains the final jurisdictional prerequisites necessary to enforce an arbitration clause if the agreement is entirely between U.S. citizens.10 It states that:

An arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls under the Convention. An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless that relationship involves property located abroad [clause a], envisages performance or enforcement abroad [clause b], or has some other reasonable relation with one or more foreign states [clause c]. For the purpose of this section, a corporation

6 Id. 7 9 U.S.C. § 203 (2012). 8 Id. § 201. 9 Id. §§ 205–206. 10 Id. § 202.

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is a citizen of the United States if it is incorporated or has its principal place of business in the United States.11

When both parties are American, it must be determined whether: (a) the relationship involves property located abroad; (b) the relationship envisages performance or enforcement abroad; or (c) whether the relationship has “some other” reasonable relation with one or more foreign states.12 Due to the comparatively vague language in the statute and disparate statutory interpretations, determining whether the language of the term “abroad” includes or does not include “international waters” has produced disputable conclusions over the past decade and across multiple jurisdictions. In interpreting whether the Convention and its subsequent codification applies to a relationship, the First Circuit created four points of analysis in a request to refer a dispute to arbitration. These are: (1) Is there an agreement to arbitrate in writing?; (2) Does the agreement provide for arbitration in the territory of a signatory to the Convention?; (3) Does the agreement arise out of a legal relationship, contractual or not, which is considered commercial?; and (4) Is the party to the agreement an American citizen, or if both parties are American, does the commercial relationship have a reasonable relation with one or more foreign states?13 The four inquiries created by the First Circuit have been widely followed (without much question or discussion) by other circuits. Cases in which these prongs have been adopted discuss only the “reasonable relation with one or more foreign states” aspect, and not the “property located abroad” or “envisages performance or enforcement abroad” aspects contained in § 202; this omission limits case law in which the “envisages performance abroad” aspect is also included and serves as one of the main reasons why courts and lawyers alike lack a clear grasp on what the definition of “abroad” truly entails. Some circuits have publicly adopted these four inquiries as the correct way to read the New York Convention; one such circuit, the Eleventh Circuit endorsed these “jurisdictional prerequisites,” and listed them in a footnote, changing the wording from questions to mandates.14 As a result, there has been the creation of an Eleventh Circuit body of case law that

11 Id. (emphasis added). 12 Id. 13 See Ledee v. Ceramiche Ragno, 684 F.3d 184, 186–87 (1st Cir. 1982). 14 Bautista v. Star Cruises, 396 F.3d 1289, 1294 n.7 (11th Cir. 2005) (citing Std. Bent Glass. Corp. v. Glassrobots Oy, 333 F.3d 440, 449 (3d Cir. 2003)); Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1293 (11th Cir. 2011) (Barkett, J., dissenting) (“Bautista is devoid of any reasoning or analysis.”).

2017] PLAIN MEANING: A-BROAD INVESTIGATION 285 differs from the language of 9 U.S.C. § 202.15 These cases discuss only the “reasonable relation with one or more foreign states” aspect, and not the “property located abroad” or “envisages performance or enforcement abroad” aspects contained in § 202. Other courts have departed from this structure when evaluating these “jurisdictional requirements” and have instead relied on the full language of § 202 in the analysis of the fourth prong. In July of 2016, The Eleventh Circuit heard a case that tackled a federal court’s power to compel arbitration based on a cruise ship’s arbitration clause contained in a contractual agreement between the cruise ship and an employee.16 Notably, Judge Moore, who decided this case at the district court level, departed from the holding in Bautista v. Star Cruises and the other cases when analyzing what he called “the four jurisdictional requirements” and included the full language of § 202 in his analysis of the fourth prong.17 Alberts, a U.S. citizen, worked as a lead trumpeter on a passenger cruise ship known as the Oasis of the Seas.18 Alberts signed two employment contracts, both of which contained the same arbitration clause, which required that all grievances any other dispute whatsoever, whether in contract, regulatory, statutory, common law, tort, or otherwise relating to or in any way connected with the Seafarer’s service for the Owners/Company under the present Agreement “shall be referred to and resolved exclusively by mandatory binding arbitration pursuant to the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards.19 After Alberts became ill and sued Royal Caribbean for negligence, Royal Caribbean moved to compel arbitration, arguing that if the arbitration clause fell within the New York Convention, the Court would hold the arbitration agreement enforceable.20 As both the District Court and Circuit Court that heard this case departed from the prongs put forward by the First Circuit, the Circuit Court’s potential authority to deny hearing the case hinged mainly on whether the term “abroad” included international waters.21 Ultimately, the District Court granted the motion and Alberts appealed.22

15 Escobar v. Celebration Cruise Operator, Inc., 805 F.3d 1279, 1285 (11th Cir. 2015). See also Quiroz v. MSC Mediterranean Shipping Co. S.A., 522 F. App’x 655, 661 (11th Cir. 2013). 16 Alberts v. Royal Caribbean Cruises, Ltd., 834 F.3d 1202 (2016). 17 Id. 18 Id. 19 Id. at 1204. 20 Id. at 1203. 21 Id. 22 Id.

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At the appellate level, Judge William Pryor agreed with the District Court’s conclusion; in his opinion, Judge Pryor found that the term “performance abroad,” as applied to the New York Convention, included a seaman’s work while traveling between countries.23 When it came to interpreting the definition of “abroad” and whether it included international waters, Judge Pryor followed Antonin Scalia and Bryan Garner’s approach that “words are to be understood in their ordinary, everyday meanings,”24 and concluded that the term “abroad” did have in fact have a plain meaning that included the realm of international waters.25 However, he then postulated that the two parties had procured different definitions of abroad to promulgate their own plain meaning arguments, and that both were over and under inclusive in the context provided by the case.26 The plaintiff had attempted to excise the term “abroad” and give it some technical definition to support the argument that an individual must actually step foot in another country to be considered abroad, while the defendant supported an expansive definition of “abroad,” suggesting that once an individual goes outside of his country’s territory into international waters, he had ventured “abroad.”27 Judge Pryor also noted that Webster’s Dictionary provided two different definitions of abroad, one that defined “abroad” as “beyond the bounds of a country,” and one that defined “abroad” as actually physically “in foreign countries.”28 In introducing two fundamentally distinct definitions of “abroad,” Pryor contradicted his previous assertion that a court would be able to determine a singular, standard usage of the definition of abroad. Rather, he indirectly confirmed that the word “abroad” might yield different definitions depending on particular factors of the case. While the Court put forward its own decisive judgment, it re-opened the question of whether, in fact, the term “abroad” had a plain meaning, and if this plain meaning was correct when applied to cases connected in some way or another to international waters. While the plain meaning serves a significant role in the legal world, this principle of statutory construction does not prevail based on the facts of this case, meaning that the Eleventh Circuit was not correct in asserting that the definition of “abroad,” standing alone, constituted international waters. The focus of this Note is to address the merits and shortcomings of the plain-

23 Id. 24 Id. at 1204. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 69 (2012) (explaining the accepted and universal approach to the plain-meaning rule). 25 Alberts, 834 F.3d at 1205. 26 Id. 27 Id. 28 Id. See Abroad, WEBSTER’S NEW INTERNATIONAL DICTIONARY 8 (2d ed. 1961).

2017] PLAIN MEANING: A-BROAD INVESTIGATION 287 meaning rule, analyzing its application, if any, to the term “abroad,” by comparing its significance to U.S. arbitration with the approaches that different foreign jurisdictions use when interpreting statutes and treaties. This analysis, in turn, will determine whether the Eleventh Circuit was correct in its alleged plain meaning analysis when it adopted a universal definition for the term “abroad.” Part II of this Note will provide a background of the history, purpose, and formation of the New York Convention in terms of its general creation and its enforcement in the United States. While accepted almost universally, the United States applies the Convention in its own way, both domestically and non-domestically, meaning that certain prongs of the Convention relevant to the United States do not carry weight in the judicial systems of other foreign jurisdictions. Part II will also introduce the reader to the plain-meaning rule, its application, and its praises and criticisms. Academics, legal professionals, and even judges debate over the legitimacy of only relying on a plain- meaning rule and interpreting statutes solely on the basis of literal text. While the plain-meaning rule has consistently established itself as an important statutory tool, many scholars have found this approach too conservative and inflexible. As a consequence, they argue, courts will limit themselves and the law when only applying the plain-meaning rule and refusing to introduce extra-textual evidence. Relying on the plain-meaning rule may also create confusion when multiple colorable definitions exist, rendering a term open to interpretation. More importantly, certain terms do not contain a plain meaning, and assigning a standard dictionary or concrete definition to an arguably open or unresolved term comes with its own set of consequences. The Alberts opinion, specifically the section on the meaning of “abroad,” is a prime example of such a circumstance. Thus, Part II will conclude with an analysis of Judge Pryor’s assertions regarding the plain meaning of the word abroad, as well as the circuit split within the Southern District of Florida, and why the outcomes of each case turned the way they did with respect to that definition. It is the position of this Note that Judge Pryor took a page out of Antonin Scalia’s dictionary, yet by doing so made the incorrect assertion that the term “abroad” had a plain meaning and required a rigid interpretation, despite evidence to the contrary. When evaluating future cases with the same issue, judges should eschew this line of thinking, which would present the statute in its most barebones form and create an impracticable bright-line rule, whether too broad or too narrow. Instead, courts should decline to overextend the scope of the plain meaning where it clearly does not exist and instead delve into other canons of statutory construction (specifically legislative history and purpose) to reach a more flexible conclusion. Despite Scalia’s fear that

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refraining from adopting a plain meaning would muddle already obscure words, attempting to read an ambiguous term on its face will result in the incorrect interpretation of a statute and a breach of justice. Part III of this Note argues that while “abroad” does in fact include international waters, it does not do so in a de facto manner; rather, this clause of the statute falls under the “reasonable relations” clause, which suggests that statutory analyses following the First Circuit’s omission of the “abroad” pre-requisite would yield sounder results. Consequently, Judge Pryor’s assertions should not carry weight for future court cases considering this same issue; all courts should instead choose to follow the First Circuit’s prongs. Since American courts continually disagree on the importance of the plain meaning, the focal point of this Note will be to examine statutory interpretation from the perspective of foreign jurisdictions, in particular the United Kingdom and Australia, both of whom follow common law, and the European Union, whose Court of Justice interprets treaties between multiple Member States. Each of these jurisdictions opposes rigid textualism and promotes the use of extrinsic materials. Finally, the Conclusion will demonstrate how the Eleventh Circuit could and should have approached the Alberts case using the prevalent approaches adopted and put forward by these jurisdictions. In this sense, relying on the approaches of foreign jurisdictions will provide for an objective viewpoint of how and why the law is best served through these different approaches and resolve Judge Pryor’s erroneous evaluation.

II. BACKGROUND

The United Nations Economic and Social Council adopted the New York Convention in 1958 as a result of general discontent with two Geneva treaties, the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.29 The Convention, described as the most successful treaty in private law, is a treaty that applies “to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal.”30 The treaty, which entered

29 U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York), 330 U.N.T.S., 21 U.S.T. 2517, 21 U.S.T. 2517, 7 I.L.M. 1046 (June 10, 1958), http:// www.uncitral.org/pdf/English/texts/arbitration/NY-conv/New-York-Convention-E.pdf (last visited Nov. 6, 2017) [hereinafter New York Convention]. 30 Id. art. 1. See Albert Jan van den Berg, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, AUDIOVISUAL LIBRARY OF INTERNATIONAL LAW, http://legal.un.org/

2017] PLAIN MEANING: A-BROAD INVESTIGATION 289 into force on June 7, 1959, aims to provide common legislative standards for both domestic and non-domestic arbitral awards; the term non-domestic in this sense pertains to awards that, while made in the same state as the enforcement, are treated as “foreign” under its law because of the existence of some foreign element in its proceedings.31 Its fundamental requisite is that signatory nations respect and enforce arbitral awards made in other signatory nations.32 It is a relatively short document, comprised of sixteen articles contained in four pages, but within fifty years of its adoption it had been ratified by 117 states and has now gained almost universal acceptance.33 Historically, the New York Convention operated as a post-World War II objective, with the first draft presented by the International Chamber of Commerce in 1953.34 The ICC took proactive measures to present its first draft of the Convention and promote subsequent draft provisions, ultimately succeeding in its task. When the Convention ended in the summer of 1958, a brief Mission Statement came into being to illustrate what the draft provisions intended to achieve: “Worldwide simple enforcement of arbitral awards.”35 In drafting the Convention, the focus was originally meant to be on the enforcement of arbitral awards, rather than agreements to arbitrate.36 However, during the final days of the New York Convention, the drafters decided to include provisions relating to the enforcement of arbitration agreements; as a result, “little thought, and less drafting attention was given avl/ha/crefaa/crefaa.html (last visited Jan. 5, 2017) (explaining the background and procedural history of the New York Convention and its entry into force as an international treaty). 31 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention”), UNICITRAL, http://www.uncitral.org/uncitral/en/uncitral _texts/arbitration/NYConvention.html (last updated 2016). 32 Id. 33 Jeffery Elkinson, The New York Convention - BVI as Part of the Global System for Promoting International Trade, CONYERS DILL & PEERMAN, https://www.conyersdill.com/pu blication-files/2014_10_Article_The_New_York_Convention.pdf (last visited Sept. 27, 2017). See Pieter Sanders, The Making of the Convention, Enforcing Arbitration Awards Under the New York Convention, UNITED NATIONS, http://www.uncitral.org/pdf/english/texts/arbitration/ NY-conv/NYCDay-e.pdf (last visited Sept. 27, 2017) (providing a history of the Convention and explaining the harmonizing effect the New York Convention has had on national arbitration legislation). 34 Sanders, supra note 33. See Ottoarndt Glossner, From New York (1958) - to Geneva (1961) - a Veteran’s Diary, Enforcing Arbitration Awards Under the New York Convention, UNITED NATIONS, http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/NYCDay-e. pdf (last visited Sept. 27, 2017) (paying homage to the key contributors to the Convention’s creation and implementation). 35 Fali S. Nariman, The Convention’s Contribution to the Globalization of International Commercial Arbitration, Enforcing Arbitration Awards Under the New York Convention, UNITED NATIONS, http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/NYCDay-e. pdf (last visited Sept. 27, 2017). 36 652 F.3d at 1289.

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to” the wording of various articles of the Convention.37 A lack of clarity in the text of the Convention itself may be partially responsible for the present lack of clarity in its subsequent codification and in its judicial application. With regard to all of the states that have entered the treaty, the Convention acts as the basis for promoting international trade and commerce and facilitates the recognition and enforcement of foreign arbitral awards and the enforcement of arbitration agreements.38 Additionally, when states enter into this treaty, their courts must adopt pro-enforcement approaches with respect to interpreting the Convention, with a presumption in favor of arbitration.39 Following this, “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration,”40 and “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.”41 The Supreme Court has specifically extended this policy to maritime claims arising out of the Convention, stating “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 in interpreting its domestic legislation in such a manner as to violate international agreements [compelling arbitration].”42 With respect to the United States specifically, the Convention took effect in December of 197043 and was subsequently codified as 9 U.S.C. §§ 202– 208, as part of the Federal Arbitration Act.44 The Supreme Court has stated that “[t]he goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts.”45 It also recognized the need “to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.”46 The codification of the Convention allows a U.S. court to direct arbitration in accordance with an arbitration agreement falling under the

37 Id. (quoting GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION: COMMENTARY AND MATERIALS 159 (2d ed. 2001)). 38 Elkinson, supra note 33. 39 Id. See Picard v. Credit Solutions, Inc., 564 F.3d 1249, 1253 (11th Cir. 2009) (citing Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d 1255, 1259 (11th Cir. 2003)). 40 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (internal quotations omitted). 41 Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). 42 Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 539 (1995). 43 New York Convention, supra note 29. 44 See Johnson v. NCL (Bahamas) Ltd., 163 F. Supp. 3d 338 (E.D. La. 2016). It is worth noting that this case was filed as supplemental authority to the Alberts case. 45 Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974). 46 Id.

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Convention and two causes of action in federal court exist under the Convention: an action to compel arbitration and an action to confirm an arbitral award under the terms of the agreement.47 Section 201 provides that the courts of the United States shall enforce the Convention and the Convention further allows for covered arbitration agreements to be removed to federal courts, granting federal courts the authority to compel arbitration pursuant to the Convention.48 When both parties are American and one party desires that the arbitration agreement falls under the New York Convention, the court must determine whether (a) the relationship involves property located abroad; (b) the relationship envisages performance or enforcement abroad; or, (c) whether the relationship has “some other” reasonable relation with one or more foreign states.49 After the requirements are met, “the Convention requires the district court to order arbitration, ‘unless it finds that the said agreement is null and void, inoperative or incapable of being performed.’ ”50

A. The Plain-Meaning Rule

“Meaning” as defined by Black’s Law Dictionary cuts to the sense of words as conveyed by a written or oral statement or other communicative act.51 Likewise, the plain meaning of a word is the significance attributed to a document by assigning words their most conventional definitions without applying any external indications of the author’s intent.52 This basic definition has transformed into a principle known as the plain-meaning rule, a textual doctrine of statutory interpretation that believes “if a legal text is unambiguous it should be applied by its terms without recourse to policy arguments, legislative history, or any other matter extraneous to the text unless doing so would lead to an absurdity.”53 The plain-meaning rule, in essence, limits the range of interpretive examination to focus the reader on the text of the statute alone; many American states have codified this rule

47 Id. at 526. See 9 U.S.C. § 206. 48 9 U.S.C. §§ 201, 205–206. 49 9 U.S.C. § 202. 50 Johnson v. NCL (Bahamas) Ltd., 163 F. Supp. 3d 338 (E.D. La. 2016) (quoting Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 339 (5th Cir. 2004)). 51 Meaning, BLACK’S LAW DICTIONARY (10th ed. 2014). 52 Plain-meaning, BLACK’S LAW DICTIONARY (10th ed. 2014). 53 Plain-meaning Rule, BLACK’S LAW DICTIONARY (10th ed. 2014).

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with the assumption that looking to the language of the text will result in a reasonable or practicable interpretation.54 As mentioned in the Black’s Law Dictionary definition, this popular rule draws criticism and praise alike for its oversimplification of text and its straightforward analysis of terms. On the one hand, utilizing the plain- meaning rule in statutory interpretation means that the words in question will be read in a de facto and strictly textual manner. In this sense, “[w]here the language of an enactment is clear, and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.”55 Throughout the duration of his legal career, Antonin Scalia, arguably the inventor and most notorious advocate of textualism, put forward various justifications for adhering strictly to the plain-meaning rule. First, Article One, Section Seven of the Constitution endorsed the plain meaning approach. Second, text-based statutory construction promoted legislative supremacy and judicial restraint, preventing an over-extension of “.”56 That is to say, Scalia often noted that judges have passive and semantic roles—they are interpreters, not creators of law.57 Or else what purpose would the legislature ultimately serve? In theorizing why the doctrine of plain meaning carries more weight as a statutory tool than legislative history when determining legislative intent, Scalia noted:

The . . . threat is that, under the guise or even the self-delusion of pursuing unexpressed legislative intents . . . judges will in fact pursue their own objectives and desires . . . [w]hen you are told to decide, not on the basis of what the legislature said, but what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent

54 Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 GEO. L.J. 341, 353–55 (2010). 55 United States v. Mo. Pac. R.R., 278 U.S. 269, 278 (1929). 56 Scott Korb, Words Mean Things, SLATE (Aug. 3, 2012), http://www.slate.com/articles/ news_and_politics/books/2012/08/reading_law_antonin_scalia_and_bryan_garner_s_guide_to _textualism_reviewed_.html. See also Richard A. Posner, The Incoherence of Antonin Scalia, NEW REPUBLIC (Aug. 24, 2012), https://newrepublic.com/artic le/106441/scalia-garner-read ing-the-law-textual-; David A. Strauss, Why Plain Meaning?, 72 NOTRE DAME L. REV. 1565, 1573–78 (1997). 57 Posner, supra note 56.

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person should have meant; and that will surely bring you to the conclusion that the law means what it ought to mean.58

One (of many) of Scalia’s most famous conveyances of the plain-meaning rule came from his dissents in Supreme Court decisions.59 In June of 2012, the Supreme Court upheld the Affordable Care Act. In the majority opinion, Chief Justice John Roberts asserted that creating an individual health insurance mandate fell within the purview of Congress’s taxing power. Roberts postulated that “the individual mandates ‘minimum coverage provision’ shall not be considered a penalty, as the law itself says, but rather a tax, ‘because it functions like a tax.’ ”60 Meanwhile, Justice Scalia joined the dissent, arguing that because the enacted legislation contains the word “penalty,” and because words have de facto meanings, the court should interpret the statute in a way that considers the meanings of “tax” and “penalty” as mutually exclusive.61 The strength of the plain-meaning rule is its obviousness as the first step or starting point in interpreting a statute. In fact, in many settings, the plain meaning approach appears so instinctive that it remains unfettered by suggested criticisms. As Scalia noted,

If people want to know what the speed limit is, or how many witnesses must sign a will to make it valid, or whether they can build a gas station on a vacant lot, they look at the relevant piece of legislation and read its words . . . [t]he notion that they should do something other than read the words, and assign them the intuitively obvious meaning, is so alien that it is difficult even to describe what the alternative would be.62

Scalia’s explanation implies that the of a word is intuitive and that readers and interpreters will instinctively turn to the language of a text before relying on any other manner of interpreting statutes. On the other hand, the rule has sometimes been used to read ineptly expressed language out of its proper context, in violation of established principles of meaning and communication. To this extent, it is an

58 Strauss, supra note 56, at 1577. See ANTONIN SCALIA, COMMON-LAW COURTS IN A CIVIL-LAW SYSTEM: THE ROLE OF UNITED STATES FEDERAL COURTS IN INTERPRETING THE CONSTITUTION AND LAWS, MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17– 18 (Amy Gutmann et al. eds., 1997) (emphasis added). 59 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (201 60 Korb, supra note 56. 61 Id. 62 Strauss, supra note 56, at 1565.

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impediment to interpretation.63 Conservative and formalist judges are more likely to adhere to a plain meaning interpretation of a term in support of traditional legislative intent and textual instinct, while those who find fault with the plain-meaning rule endorse additional, extra-textual clues such as verbal context, legislative purpose, and case-specific circumstances. Regardless, even some of the most conservative judges in the United States warn against adhering only to the plain-meaning rule. In fact, Judge Frank Easterbrook,64 another self-proclaimed textualist, has said that “[t]he choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”65 Judge Richard A. Posner also contributed to this side of the legal debate. In his 2012 article, The Incoherence of Antonin Scalia,66 he provided an illustrative and self- explanatory example of the problem with a textualist approach to statutory interpretation:

Does an ordinance that says “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle- any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones) . . . [a] legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad

63 Plain-meaning Rule, supra note 53 (quoting REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 229 (1975)). 64 Judge Frank Easterbrook is a judge of the United States Court of Appeals for the Seventh Circuit. 65 Posner, supra note 56 (quoting Judge Frank Easterbrook). 66 It should be noted that Richard Posner is no stranger to addressing controversial topics and proffering undisguised opinions. See John Fabian Witt, The Provocative Life of Judge Richard Posner, N.Y. TIMES (Oct. 7, 2016) (“In the past half century there has been no figure more dominant or more controversial in American law than Posner.”).

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hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible.67

Posner puts into words the main critical flaw of relying on strictly linguistic legal interpretations. In this scenario, a medical vehicle that entered a park to attend to an individual that required treatment would technically have breached an ordinance. Regardless of any affirmative defense or justification, the conduct would amount to a violation of the law. Meanwhile, any piece of legislative history that supplemented that text would likely explain the true intent behind the text and invalidate a too- narrow reading of the rule. This spin on the fallbacks that arise as a result of relying too heavily on the plain meaning strongly support Posner’s thesis that other interpretive canons serve crucial purposes. Justice Scalia procured conceivable arguments for using the plain- meaning rule; it is a convenient method of interpreting statutes, in particular when the disputes at hand proved especially complex. However, what the plain-meaning rule provides in expedience, it lacks in calculated reliability as to drafters’ intentions. This doctrine proves valuable when a term appears to have an intrinsically transparent meaning, but it also relies on the assumption that language is the sole (or at least heavily favored) indication of the legislature’s intent. If the judicial inquiry into plain meaning is so much more heavily emphasized than a legislative inquiry, the judicial inquiry will often be a bad vehicle for discovering the understandings that the legislature had. In reality,

[w]henever a dispute about the interpretation of a statute is evenly-balanced enough to make a court hesitate about the right answer, it will be a safe bet that either the legislature passed the buck, or it did not focus on the precise issue at stake. Otherwise the language would not be so unclear.68

Instead of relying solely on linguistic canons, courts have the opportunity to utilize broader extrinsic legislative source canons, which allows interpreters to examine the history or circumstances under which a statute or provision was enacted.69 This “common law canon stresses a more panoramic historical view of the conditions that led to the enactment.”70 Legislative history comes with its own set of criticisms, and two of the main

67 Posner, supra note 56. 68 Strauss, supra note 56, at 1572. 69 Scott, supra note 54, at 379. 70 Id.

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drawbacks are overwhelmingly obvious. First, a judge’s use of legislative history may upset the notion that judges act as passive interpreters and have an ultimately semantic role.71 Critics also claim that legislatures do not function as a collective entity and thus are incapable of forming a unanimous intention, an argument that identifies legislative intent as a far-fetched, even impractical tool.72 Despite the pitfalls of legislative history, American legislatures have ratified judicial use of legislative history and accepted it as a principal interpretive tool, such that if a statute contains ambiguity, a court may use legislative history in an effort to determine the legislative intent behind the statute.73

B. The Eleventh Circuit’s Dissection of the Plain-Meaning Rule

In the Alberts case, the Eleventh Circuit conducted statutory interpretation when determining whether to compel arbitration under the New York Convention, following the well-accepted idea that the “first task . . . is to determine whether the plain meaning . . . is apparent. In the absence of a statutory definition of a term, we look to the common usage of words for their meaning.”74 As supported by other Eleventh Circuit cases, “courts often turn to dictionary definitions for guidance” in confirming the plain meaning of a specific phrase or term; if the plain meaning of the statutory language “is not entirely transparent,” a court must turn to canons of construction.75 It is also worth mentioning that in this Circuit, a court conducts a “very limited inquiry” in deciding whether to compel arbitration under the Convention.76 In analyzing the four jurisdictional prerequisites, the Court was “mindful that the Convention Act ‘generally establishes a strong presumption in favor of arbitration of international commercial disputes.’ ”77 Notwithstanding the presumption of favoring arbitration and regardless of all other interpretive tools, the first step in resolving a dispute regarding the interpretation a statute begins with determining whether a court may find a

71 Posner, supra note 56. 72 Id. (“Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting.”). 73 Scott, supra note 54, at 380. 74 CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001). 75 Id. at 1223, 1225. 76 396 F.3d at 1294 (quoting Francisco v. Stolt Achievement, 293 F.3d 270, 273 (5th Cir. 2002)). 77 Id. at 1295 (quoting Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1440 (11th Cir. 1998) (internal quotations omitted)).

2017] PLAIN MEANING: A-BROAD INVESTIGATION 297 sufficient plain meaning behind the provision. Generally, “[w]hen the words of a statute are unambiguous, then, this first canon [of statutory construction] is also the last: judicial inquiry is complete.”78 Most importantly, a court looks to the actual language rather than interpret any isolated phrase in the statutory provision, as the courts should only apply statutory canons when the statutory language is not “entirely transparent.”79 On its face, 9 U.S.C. § 202 consists of relatively straightforward and discernable terms as they pertain to an arbitration agreement under the Convention, but separating the term “abroad” from the language of the statute and looking at its stand-alone definition indicates that there is no one plain meaning definition of abroad. The definition of “abroad” in 1968 was “beyond the seas.”80 Even though this definition holds that persons must be beyond the seas to be considered “abroad,” the meaning remains unclear and obscure. Beyond the seas could have multiple interpretations; it could mean beyond the territorial waters of a country, beyond the high seas into another country’s territorial waters, etc., and the definition does not elucidate what this phrase actually means. Furthermore, a more recent definition of “abroad” is “outside a country.”81 Again, the definition contains some degree of ambiguity, and it does not clarify what “outside” a country actually entails. First, a reasonable person could find either of these proposed definitions sufficient, which indicates that neither acts as the sole plain meaning and neither should have controlling weight. Second, both definitions fall on opposite ends of the spectrum of possible interpretations; adopting the plain meaning of either of them would create a restrictive bright-line and lead to unintended consequences. On the one hand, adopting Defendant’s proposed definition would mean that by default, an individual would fall under the Convention the moment he moved outside of territorial waters, even if he was less than one mile from the customary boundary. On the other hand, the plaintiff’s interpretation would mean that in order for an individual to fall under “abroad” language of § 202, he would always have to be physically present in a foreign state. In light of the dictionary definitions, “abroad” does not have a singular meaning that intimates it is limited to presence in a foreign state or that automatically labels international waters as abroad. As a result of this broad and ambiguous language, no definitive answer exists as to whether the plain meaning of “abroad” includes “international waters.”

78 Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997). 79 CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d at 1225. 80 Abroad, BLACK’S LAW DICTIONARY (4th ed. 1968). 81 Abroad, BLACK’S LAW DICTIONARY (10th ed. 2014).

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Consequently, as Judge William Pryor noted in his Alberts opinion, there is a split within the Circuit as to whether or not “abroad” includes international waters.82 Furthermore, because the vast majority of these cases are being heard in the Southern District of Florida,83 this split within the Circuit is more accurately described as a split within the Southern District of Florida, where judges within the court have issued conflicting rulings, even against the same defendants. Over the past seven years, multiple cases within the Southern District have emerged with respect to the same question Pryor tackled in his Alberts opinion. The list below identifies those cases and their ultimate positions as to whether the word “abroad” includes international waters:84 Odom v. Celebrity Cruises was the first case in the Eleventh Circuit to find that “abroad” did include international waters, representing a departure from previous cases and acting as the basis for a new line of cases.85 Within the Eleventh Circuit, district courts have developed two bodies of case law:

82 Alberts, 834 F.3d at 1205. 83 Port Miami and Port Everglades, both within the jurisdiction of the S.D. Fla., were the world’s busiest and second busiest cruise ports, respectively, in 2014 (the most recently available data). Port Miami Breaks Another Cruise Passenger Record with 4.8 Million Multi-Day Passengers in 2014, MIAMI-DADE CTY. (Dec. 3, 2014), http://www.miamidade.gov/portmiami/ press_releases/2014-12-03-cruise-passenger-record.asp; Port Everglades Regains Rank as World’s Second Busiest Cruise Port, BROWARD SUN SENTINEL (Nov. 26, 2014), http:// www.sun- sentinel.com/business/tourism/fl-port-everglades-second-again-20141126-story.html. 84 Cases Holding that “Abroad” Includes International Waters: 1. Leighton v. Royal Caribbean Cruises, Ltd, No. 1:16-cv-20507-KMM, 2016 WL 1321417 (S.D. Fla. 2016) (Moore, C.J.). 2. Ringewald v. Holland American Line – USA, Inc., No. 1:15-cv-202584, 2015 WL 4199808 (S.D. Fla. 2015) (King, J.). 3. D’Cruz v. NCL (Bahamas) Ltd, No. 1:15-cv-20240, 2015 WL 1468327 (S.D. Fla. 2015) (King, J.) (Companion case to Alberts in 11th Circuit). 4. Rutledge v. NCL (Bahamas) Ltd, No. 14-23682-CIV, 2015 WL 458133 (S.D. Fla. 2015) (Moreno, J.). 5. Odom v. Celebrity Cruises, Inc., No. 10-23086-CIV, 2011 WL 10636151 (S.D. Fla. 2011) (Jordan, J.). Cases Holding that “Abroad” Does Not Include International Waters 1. Armstrong v. NCL (Bahamas) Ltd, 998 F. Supp. 2d 1335 (S.D. Fla. 2013) (Gold, J.). 2. Smith-Varga v. Royal Caribbean Cruises, Ltd, No. 8:13-cv-00198-EAK- TBM, 2013 WL 3119471 (M.D. Fla. 2013) (Kovach, J.). 3. Hines v. Carnival Corp., No. 11-20862-CIV, 2012 WL 1744843 (S.D. Fla. 2012) (Martinez, J.). 4. Matabang v. Carnival Corp., 630 F. Supp. 2d 1361 (S.D. Fla. 2009) (Hoeveler, J.). 85 No. 10-23086-CIV, 2011 WL 10636151.

2017] PLAIN MEANING: A-BROAD INVESTIGATION 299 the aforementioned Odom86 line of cases holding that “abroad” includes international waters and the Matabang87 line of cases holding that “abroad” does not include international waters. This rift has also extended beyond the Eleventh Circuit into other jurisdictions that have come to their own conclusion as to how to best interpret statutes of the New York Convention. One of the most relatable and notable examples comes from the Fifth Circuit’s Freudensprung opinion.88 Freudensprung, an American citizen, suffered injuries while working on an offshore oil and gas project located in Nigerian waters.89 The employee had an employment contract with Offshore Technical Services, Inc. (OTSI), a Texas-based corporation, and suffered injuries while working on an offshore oil and gas project located in Nigerian waters.90 When it came to analyzing whether the court could compel arbitration, the first three requirements of the Convention were met, but the issue of how the Convention applied to an agreement between two U.S. citizens was one of first impression.91 The Fifth Circuit found that the employment agreement sufficiently “envisage[d] performance abroad,” as Freudensprung provided pipefitting services and the work occurred in West Africa.92 Additionally, Freudensprung’s contract did not specify where he would work.93 Until another company contracted with OTSI for services, Freudensprung had no reason to know that he would be sent to Nigeria, and it is unclear how much time Freudensprung may have spent in international waters as compared to Nigerian waters or on land.94 Nevertheless, the Fifth Circuit found his work in Nigeria to be sufficiently “abroad.”95 A final important point that Freudensprung makes is the Fifth Circuit’s highlighting of § 202 as requiring the parties envisage performance “abroad” rather than performance in one specific foreign state.96

86 Odom v. Celebrity Cruises, Inc., No. 10-23086-CIV, 2011 WL 10636151 (S.D. Fla. 2011). 87 Matabang v. Carnival Corp., 630 F. Supp. 2d at 1361. With the exception of Odom, all of the cases holding that “abroad” includes international waters have all been decided after the line of cases holding that “abroad” does not include international waters. It is unclear if it this pattern qualifies as a trend or simply a by-product of different judges evaluating their respective cases. 88 Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d at 327. 89 Id. at 332. 90 Id. 91 Id. at 339–40. 92 Id. at 340–41. 93 Id. at 332. 94 Id. at 333. 95 Id. at 341. 96 Id. at 340–41.

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On the other hand, the Armstrong/Matabang line of cases97 largely predates the Odom line and comes to the opposite conclusion as Odom. Matabang was a case of first impression at the time.98 The facts of Matabang are largely comparable to the facts of Odom. Matabang concluded that the plaintiff was “assigned to work on a vessel, not a specific international itinerary.”99 Judge Hoeveller specifically concluded that “time on the high seas, which undoubtably accounts for much of the 80–85% of the time [the cruise ship] supposedly spends outside the United States is arguably not time ‘abroad.’ ”100 Moreover, “even accepting the [ship] entered Bahamian territory as part of its weekly routine, the relevant § 202 ‘legal relationship’ is the employment contract, which does not reasonably relate to a foreign state.”101 Judge Hoeveller concluded that “the facts of this case fall outside the letter and spirit of the implementing legislation to the New York Convention.”102 By the time Smith-Varga was decided (four years after Matabang), “arguably not time ‘abroad,’ ”103 had transformed into: “the high seas are not to be considered ‘abroad’ by default.”104 Armstrong went further, concluding that “because Plaintiff performed work only aboard the [ship] and was never requested to perform work or services on foreign soil,” the agreement did not envisage performance abroad.105 Another significant case, from the Southern District of Texas, presented the same issue raised and insignificantly evaluated in the Alberts case.106 Ensco is also cited by most of the cases in the Matabang line of cases. Ensco, an American company, had hired Titan, another American company, to salvage an oil rig ninety miles off the coast of Louisiana.107 Judge Hanen found that “Congress did not envision American companies with a dispute just off the Gulf Coast with eventual performance in Texas to be property, performance, or enforcement ‘abroad,’ ”108 even though at that point the rig technically was located in international waters. The court furthermore found that “the fact that the [oil] rig sat in international waters and would require work more

97 This line of cases is often referred to as the Armstrong line, given that Armstrong was published in the Federal Supplement after Odom was decided. Nevertheless, the analysis in Armstrong is based on Matabang, which was also published in the Federal Supplement. 98 630 F. Supp. 2d at 1364. 99 Id. at 1366. 100 Id. (emphasis added). 101 Id. at 1367. 102 Id. 103 Id. at 1366. 104 No. 8:13-cv-00198-EAK-TBM, 2013 WL 3119471, at *3. 105 Armstrong v. NCL (Bahamas) Ltd., 998 F. Supp. 2d at 1338–39. 106 Ensco Offshore Co. v. Titan Marine, L.L.C., 370 F. Supp. 2d 594 (S.D. Tex. 2005). 107 Id. at 595. 108 Id. at 600.

2017] PLAIN MEANING: A-BROAD INVESTIGATION 301 than twelve miles off the coast of the United States is insufficient in and of itself to qualify this agreement under [§ 202].”109 Judge Hanen specifically concluded that Ensco is distinguishable from Freudensprung because the actual performance in Freudensprung was in Africa, while in Ensco performance was off the coast of Louisiana (but in international waters).110 In coming to this conclusion, Judge Hanen essentially negated any plain meaning definition of “abroad” that would have encompassed international waters by asserting that the rig sitting off of the Gulf Coast did not qualify as a “foreign connection.”111 In addition to Ensco and the analysis put forward by the Southern District of Texas, two other circuits have had a chance to analyze the applicability of the fourth requirement of the Convention. In Jones v. Sea Tow Services Freeport NY Inc.,112 Sea Tow agreed to salvage a pleasure boat that had been stranded on the shore of Long Island.113 The only relationship the agreement between Jones and Sea Tow had with any territory outside of the United States was a forum selection clause specifying arbitration would occur in London and a choice of laws clause stating that arbitration would be governed by the law of England. As the Second Circuit concluded, “it is therefore difficult on the record before us to envision the enforcement of any arbitral award anywhere but in the United States . . . there is no important foreign element involved.”114 In Jones, the Second Circuit clearly and unambiguously identified what will not qualify as a “reasonable relation with one or more foreign states” or “abroad”; a forum selection clause and choice of law clause alone is insufficient.115 Lander Co., Inc. v. MMP Investments, Inc. is another factually distinguishable case dealing with the application of the Convention.116 In Lander, an American shampoo manufacturer (Lander) entered into a contract with another American company (MMP) for the distribution of shampoos in Poland.117 The contract required arbitration in New York City pursuant to the rules of the International Chamber of Commerce.118 Lander largely deals with other issues arising out of the dispute. Nevertheless, the Seventh Circuit found that because the contract was to be performed in Poland, it

109 Id. at 601. 110 Id. at 599. 111 Id. 112 Jones v. Sea Tow Servs. Freeport N.Y., Inc., 30 F.3d at 360 (2d Cir. 1994). 113 Id. at 362. 114 Id. at 366. 115 Id. 116 Lander Co. v. MMP Inv., Inc., 107 F.3d 476 (7th Cir. 1997). 117 Id. at 478. 118 Id.

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sufficiently satisfied the language of § 202.119 Correspondingly, the Seventh Circuit found that the Convention can apply to suits in the United States to enforce awards made in the United States, provided that the foreign element is still met in another manner.120 The Seventh Circuit did not undertake a thorough discussion of the meaning of “abroad.” The distinction between these two lines of cases within the Southern District, as well as the other conclusions proffered by courts of other jurisdictions, seems to suggest that more than one definition of “abroad” might exist, meaning that determining whether it includes “international waters” could require an analysis of legislative history, the circumstances of a case, and outside context. This clash reached a potential resolution with the Alberts case, but the problem with Judge Pryor’s opinion is that he failed to give an absolute or satisfactory answer as to whether “abroad” has a plain meaning that indicates the term includes international waters. Pryor unequivocally contends that “abroad” should be read as including international waters, but his analysis fails for multiple reasons.121 First, a reasonable person could find either of the proposed definitions brought forward by the plaintiff and the defendant sufficient, which indicates that neither acts as the sole plain meaning and neither should have controlling weight. Second, both definitions fall on opposite ends of the spectrum of possible interpretations. Adopting the plain meaning of either of them would create a restrictive bright-line and lead to unintended consequences. In light of the dictionary definitions and their evolution, “abroad” does not have one singular meaning that intimates it is limited to presence in a foreign state or that automatically labels international waters as abroad. Why does this matter? Every single prong must be satisfied in order for an arbitration clause to fall under the Convention. Other tools of statutory construction may be applied to each of the prongs of § 202 in order to analyze the language of the statute. However, when a judge decrees that a term or phrase has a plain meaning, he stops his analysis at that point and comes to a conclusion based solely on that textual interpretation. Judge Pryor, despite his conclusion that “abroad” had a plain meaning, did nothing to demonstrate that this term had an ordinary meaning that all readers would understand on its face. On the contrary, he took a definition from an earlier Supreme Court case,122 then applied that definition to the context of the case at hand. While the parties’ definitions were inconsistent with the standard usage in this context, this lack of consistency does not detract from the idea that multiple

119 Id. at 482. 120 Id. 121 See generally id. at 476. 122 United States v. Hutchins, 151 U.S. 542 (1894).

2017] PLAIN MEANING: A-BROAD INVESTIGATION 303 possible definitions of “abroad” exist. Therefore, regardless of whether Judge Pryor reached the correct conclusion, he made a point that will likely revive, rather than cease, the “abroad” split within the Southern District of Florida.

III. ANALYSIS

How would a foreign jurisdiction reconcile the plain meaning of the word “abroad”? Is it an intuitive answer that requires only textual interpretation, or does it depend on context? Many other states around the world have ratified the New York Convention and thus adhere to their standards. However, the jurisdictional pre-requisite at issue in this Note specifically pertains to two U.S. entities, meaning that these extraterritorial states do not need to satisfy the same prongs, in particular the first prong requiring “performance or enforcement envisaged abroad.” Irrespective of these states’ connection with the New York Convention, this section has no bearing on the states’ ability to compel arbitration. Furthermore, the statutory rules of construction present in American courts often do not translate or hold the same significance in foreign jurisdictions. Instead, foreign jurisdictions approach statutory construction and interpretation based on their own practices, and many of the interpretive tools these states use supersede the plain-meaning rule.

A. Statutory Interpretation in the United Kingdom and Australia

Many jurisdictions, including the United Kingdom, follow a technique known as the , a rule that aligns closely with the British “.”123 Both of these statutory ideologies partially adopt and partially contravene the plain-meaning rule.124 Although looking to the language of the statute always comes first, “under this approach, ‘the words

123 Purposivisim is defined as “[t]he doctrine that texts are to be interpreted to achieve the broad purposes that their drafters had in mind; specif[ically], the idea that a judge-interpreter should seek an answer not only in the words of the text but also in its social, economic, and political objectives.” The mischief rule is a British doctrine of statutory construction that “a statute should be interpreted by first identifying the problem (or ‘mischief’) that the statute was designed to remedy and then adopting a construction that will suppress the problem and advance the remedy.” Purposivism, BLACK’S LAW DICTIONARY (10th ed. 2014); Mischief Rule, BLACK’S LAW DICTIONARY (10th ed. 2014). 124 These strategies, similar to another doctrine known as intentionalism, emphasize “plain meaning and only insofar as these tools are helpful for determining the will or the intent of the enacting legislature.” Katharine Clark & Matthew Connolly, A Guide to Reading, Interpreting and Applying Statutes, THE WRITING CENTER, GEORGETOWN UNIVERSITY LAW CENTER (April 2006) (emphasis added).

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of the text are expanded or contracted from their usual meaning to carry out the legislative purpose,’ and ‘[t]here is no finding that the text is ambiguous before looking at other sources to figure out the purpose in the statute.’”125 In other words, purposivism looks at the comprehensive purpose of the statute and interprets it by analyzing both the language present in the statute and extraneous materials; in this sense, the doctrine transcends solely looking to the words within the statute. Originally, courts only used the rule as a last resort or in extenuating circumstances where an ambiguity existed and the literal rule was immaterial.126 Now, the rule is recognized as a principal canon of statutory construction. In some cases and contexts it supersedes the plain-meaning rule, in other instances it supplements it. Thus, while the plain-meaning still bears significance, it is no longer a sufficient, stand-alone method of interpretation in law. The trend away from literalism began almost forty years ago, when the Law Commission of England and Wales, as well as the Scottish Law Commission, endorsed the purposive approach and argued for its entrance into statutory construction as a principal, rather than auxiliary, tool.127 In 1992, the House of Lords in Pepper v. Hart held that the court had the discretion to use Parliamentary material as a guide to the construction of legislation with respect to all , diverging from the reigning common law rule that judges would not take counsel from legislative history and completely changing England’s common law of interpretation.128 Plaintiff John Hart was a teacher and fell into a category of taxpayer awarded the benefit of having his children educated at a reduced rate of tuition.129 A dispute arose as to the proper interpretation of an Act and whether it allowed the Inland Revenue to tax this benefit.130 The House of Lords ruled in favor of Hart after determining they had the authority to refer to Hansard transcripts, a source of extrinsic material, and other sources in order to properly interpret the act. In his portion of the decision, Lord Griffiths found that the time had come to change the self-imposed judicial rule that prohibited using the legislative history of an enactment to assist with statutory interpretation.131 He further noted that

125 Debbie Haskins, Determining Legislative Intent & Rules of Statutory Interpretation, NCLS (August 2012). 126 Rapanos v. United States, 547 U.S. 715 (2006). 127 Tobias Lonnquist, The Trend Towards Purposive Statutory Interpretation: Human Rights at Stake, 13 REVENUE L.J. 18, 21 (2003). 128 Pepper (Inspector of Taxes) v. Hart [1992] 3 (WLR) 1032, http://www.bailii.org/uk/case s/UKHL/1992/3.html. See also Scott, supra note 54, at 346. 129 Id. 130 Id. 131 Id.

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[t]he ever increasing volume of legislation must inevitably result in ambiguities of statutory language which are not perceived at the time the legislation is enacted . . . [t]he days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language.132

His opinion mandated that the courts adopt a purposive approach that seeks to give effect to the true purpose of legislation and are prepared to look at any extraneous material that bears upon the background against which the legislation was enacted.133 Lord Griffiths verbalized the House of Lord’s decision to depart from a strict, plain meaning only analysis to allow for leniency in the face of ambiguous statutory language. More specifically, if primary legislation appeared vague or obscure, the courts would have the ability, in some circumstances, to consult statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation. Until this decision, the use of Hansard as extrinsic evidence in this type of statutory analysis would constitute a breach of Parliamentary privilege.134 Australia followed a similar trend, starting from as early as the turn of the nineteenth century with the inception of the Acts Interpretation Act of 1901.135 The Act serves as a material to use when reading or interpreting the Commonwealth Acts of Australia, as well as the instruments made under the Commonwealth Acts. In subsequent amendments, the government enacted Section 15AA, the interpretation best achieving Act’s purpose or object, which states that a purposive interpretation prevails as the preferred method of interpreting an Act.136 Likewise, Section 15AB allows for the admission of extrinsic materials when interpreting a statute, whether to confirm the meaning of a provision or to offer up additional evidence in light of an ambiguous provision. The introduction of both of these sections of the Act illustrated the shift toward the purposive approach.

132 Id. 133 Id. 134 Id. 135 Acts Interpretation Act 1901 (Cth) (Austl.). This is a compilation of the Acts Interpretation Act 1901 that shows the text of the law as amended and in force on 1 July 2016 (the compilation date). 136 Id. § 15AB.

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B. The European Union

On this same side of the statutory construction spectrum lies the Court of Justice of European communities, which encompasses three different courts that exercise the judicial functions of the European Union (EU).137 One such court is the European Court of Justice (ECJ), the highest court in the European Union in matters of European Union law. The ECJ is a multilingual institution that caters to the languages and legal systems of each Member State and ensures the uniform interpretation and application of EU law.138 The ECJ’s approach to interpreting treaties has remained consistent over the years and its fundamental framework suggests a pronounced departure from plain meaning reliance.139 Despite changes throughout the phases of its existence, the European Court of Justice has retained the same method of interpretation since its inception in the 1950s and it serves to take account of the purpose of the legislation in question.140 This method of interpretation best suits many of the facets special to this Court’s framework and structure, where the common law only exists in two of the fifteen member states, the United Kingdom and Ireland.141 The characteristic component of this Court’s method of interpretation is a “teleological” approach; the original doctrine posited that it was necessary to consider the “spirit, general scheme and the 142 wording.” More recently, the importance of context and objects of rules has been added to supplement the general spirit and text when interpreting a provision.143 The key point of this approach is that the Court diverges from solely relying on language and instead employs other tools of statutory interpretation. Two main points of emphasis demonstrate why the ECJ’s purposive approach is the proper one given the nature of the treaties, the Court, and the community. First, the judges who sit on the ECJ’s bench must interpret treaties of many different languages. Originally, the Court entered existence with four official languages (French, German, Italian and Dutch)

137 The Court was originally established in 1952 as the Court of Justice of the European Coal and Steel Communities. Court of Justice of the European Union, INTERNATIONAL JUSTICE RESOURCE CENTER, http://www.ijrcenter.org/regional-communities/court-of-justice-of-the-eur opean-union/ (last visited Sept. 27, 2017). 138 Id. 139 Id. See also Neil Fennelly, Legal Interpretation at the European Court of Justice, 20 FORDHAM INT’L L.J. 656 (1996). 140 Advocate General Francis Jacobs, Seminars on Quality of Legislation, European Commission (Nov. 26, 2003). 141 Fennelly, supra note 139, at 656. 142 Id. at 664 (quoting Case 6/72, Europemballage Corp. & Continental Can Co. v. Commission, 1973 E.C.R. 215, 243, 22 [1973] 1 C.M.L.R. 199, 223). 143 Id.

2017] PLAIN MEANING: A-BROAD INVESTIGATION 307 among six Member States.144 In more recent years, additional Members have joined, and the Court now faces interpretive problems in twelve official languages; as a result, “divergences in nuance, emphasis, and even substantive meaning are commonplace, indeed inevitable.”145 The Court was forced to conclude that every version would have its own unique terms and that translating each document uniformly would prove impossible; as a result, resorting to the language of the text alone could not solve interpretive issues, and even textually similar or equivalent words may not necessarily render the same meaning.146 Second, the main purposes of the ECJ are to provide single, uniform judgments and to foster shared principles and compatibility within Community Law, or laws within particular communities, while also respecting the unique identity and beliefs of each region.147 Judge Constantinos N. Kakouris148 legitimized the use of teleological and comparative law within the Court on the basis of these community ideals. Although he conceded that no express legal provision authorized the Court to approach interpretation in this way, he maintained that the Court’s authority is founded on Article 164 of the treaty establishing the European Economic Community,149 which states that the “Court of Justice shall ensure that in the implementation and application of this treaty the law is observed.” To successfully fulfill this vision, he argued that the Court may and should use a comparative and teleological method of interpretation.150

144 Id. 145 Id. at 660–61. 146 Id at 661. 147 Id. at 665–66. 148 Judge Kakouris was a judge for the European Court of Justice from 1983–1997. See European Court of Justice Press Release 63/97, New Members of the Court of Justice of the European Communities (Oct. 6, 1997), http://curia.europa.eu/en/actu/communiques/cp97/cp9 763en.htm. 149 The treaty, signed in Rome in 1957, led to the organization known as the European Community (EC), originally called the European Economic Community (EEC). It is one of three communities ultimately subsumed by the European Union. The EEC was designed to create a common market among its members and promote community ideals in the wake of World War II. Similar to its position in the European Steel and Coal Community, one of those three original communities that dissolved in 2002, the European Court of Justice became an institution in the EC community. Matthew J. Gabel, European Community (EC), ENCYCLOPEDIA BRITANNICA, https://britannica.com/topic/European-Union (last visited Sept. 27, 2017). 150 C.N. Kakouris, Use of the Comparative Method by the Court of Justice of the European Communities, 6 PACE INT’L L. REV. 267 (1994). Comparative law refers to the comparison between national law and European Law, as well as the comparison of laws relative to both Member States and non-member countries. It co-exists with teleological interpretation and shares the same goal of reaching the purpose behind various laws where language-based interpretations fail. See Koen Lenaerts, The Court of Justice and the Comparative Law Method, ELI Annual Conference (Sept. 9, 2016) (“For the European Court of Justice (the

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In doing so, the judges of the Court of Justice had to set aside their personal beliefs and arrive at criteria by referring to the beliefs and common values of the people of Europe. This process is comprised of two stages. First, the Court refers to the legislation of the Member States in which those beliefs and convictions are reflected. Second, if the first method does not bring results, the Court then refers directly to the convictions, beliefs, and spiritual attitudes of the peoples of Europe.151 The Court establishes some degree of equilibrium between the law of the European Union and the law of each respective member state, providing a consistent exposition of EU laws while also honoring customs of each individual member state; the teleological approach to interpretation brings this goal to fruition. When filling in the gaps of vague law by seeking to recognize the meaning of each law in light of its purpose, the Court acts “as though it were the consciousness of Europe,” successfully incorporating a multi-cultural and multi-lingual approach to resolving each dispute while still deferring to the objectives pursued by the treaty.152 In November of 2003, Advocate General Francis Jacobs held a seminar on how to interpret legislation that is equally authentic in twenty languages.153 With respect to the foreign language emphasis, he noted that a comparison of different versions of laws would not resolve linguistic discrepancies, and more importantly, that the Legislature would not consider each language version.154 He also touched on the importance of a single judgment by the ECJ in fusing national perspectives and promoting the Community process. His one resolution was to adhere to the already time- honored teleological interpretation and take account of both context and the purpose of legislation, while placing less focus on the text. The relationship between Kakouris’s article and Jacobs’s seminar, both of which occurred around the same time, rests on their almost identical endorsement of the ECJ’s purposive, teleological approach to statutory interpretation.

‘ECJ’), this means, in essence, that the law of the EU must be read in a way that accommodates that dynamic balance. The ECJ must provide a uniform interpretation of the laws of the EU, whilst deferring to the common constitutional traditions of the Member States and, as the case may be, allowing room for value diversity. To that end, the authors of the Treaties vested the ECJ with the constitutional authority to engage in a comparative study of the laws of the Member States. The comparative law method is thus a valuable interpretative tool that serves to strike that dynamic balance.”). 151 Kakouris, supra note 150, at 274. 152 Id. 153 Jacobs, supra note 140. 154 Id.

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C. Legislative History in the Interpretation of § 202

The connection between a purposive or teleological approach and the New York Convention is subtle and implicit. Courts and the judges who sit on their benches have the autonomy to choose the manner by which they interpret statutory provisions. A prominent example of the diversity of approaches comes from the bench of the Supreme Court. Some justices have ideas deeply rooted in conservatism, while some justices have liberal tendencies. Some justices rely on history and functionalism; others refuse to look past a formalist approach. Then there was Scalia: the champion of the plain-meaning rule and the king of stinging dissents when the Supreme Court diverged from his revered ideology. However, principles and decisions illustrated by the history, scholarship, and case law (not by dictionary definitions) of foreign jurisdictions indicate that plain meaning should be used in conjunction with, rather than in place of, other canons of statutory construction. Even domestic Courts who have a common law that is applied to parties who share the same ideals and speak the same language, publicly support using a broader, less textual system of statutory interpretation. As Speaker Susan Crennan so aptly declared:

The contemporary search for meaning in the context of statutory interpretation occurs against a particular background. In recent decades there has been a good deal of reflection and writing by philosophers, linguists and literary theorists about text, meaning, context, certainty and uncertainty. . . . and the emergence of new interpretative theories including the dynamic theory of interpretation which holds that “the meaning of a statute is not fixed until it is applied to concrete circumstances, and it is neither uncommon nor illegitimate for the meaning of a provision to change over time.” These broader intellectual developments have, I think, injected a certain vitality into recent debates over theories of statutory interpretation. However, whether that be so or not, it can be demonstrated that contemporary approaches to statutory interpretation preclude sacrificing meaning to inflexible theories or principles.155

155 Honorable Justice Susan Crennan, High Court of Australia, Speech on Statutes and the Contemporary Search for Meaning, Statute Law Society Paper (Feb. 1, 2010).

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Words, statutory meanings, and even rules of law are malleable; they change over time to reflect an ever-growing, ever-expanding society. The meaning of a word in a nation’s first constitution or earliest statute may not have quite the same connotation as a word in an act passed this year, and an interpretation of a law should not be limited to examining a word on its face, nor resorting solely to 1925, 1930, and 1950 versions of an Oxford dictionary. As shown in Pepper v. Hart, materials concerning the purpose or intent behind certain pieces of ambiguous legislation give genuine effect to otherwise indeterminate statutes. But why wait until a word is ambiguous to fall back on these tools? Placing more emphasis on the will of the drafters and a statute’s context and purpose may improve the practice of interpretation as a whole. By the same token, treaties, particularly multi- lateral, multi-lingual, and multi-cultural treaties, will always require more than a translation when a vague term poses a problem. Much of the attention that treaty interpretation garners is negative and focuses mainly on treaty and statutory fragmentation due to parties’ differences in languages, ideological perspectives, moral systems, and objectives. Treaties are left intentionally incomplete because many States must ratify them and they do so in their own specific, distinct language. Each State has the discretion to make a treaty specific to its own personal language, meaning that gaps and holes may serve as points of tensions, should a conflict arise. Nevertheless, if judges choose a teleological or purposive approach, they may consider the overall goals and principles of a much broader community where language barriers or vague texts fail to procure answers. While the specific provision in the New York Convention deals with two U.S. entities, it falls under an arbitration treaty signed by over 100 states and should be consistent with the overall objectives and rules of the treaty. As previously illustrated, the New York Convention seeks to provide a more uniform and efficient manner of enforcing foreign arbitration awards, meaning that the terms within the treaty should carry the same significance, regardless of the provision where they appear or parties in question. A domestic court in the United States may look at the law differently than an international tribunal, as was the case in this particular fact pattern, but the limited inquiry conducted by the Eleventh Circuit could have negative implications with respect to any future statutory analysis within the treaty. With the Eleventh Circuit adopting a false and forced plain meaning of the term abroad, it allows parties to rely on this proposed definition in future controversies. The slippery slope argument, while an exhausted and oft- criticized one in the field of law, is a valid one taken in the context of this case. Holding that on its face, the term “abroad” automatically includes

2017] PLAIN MEANING: A-BROAD INVESTIGATION 311 international waters, leads to either an incorrect resolution of a district split or other courts’ continued refusal to adopt such a definition. Instead of relying on a concrete plain meaning of “abroad,” the Eleventh Circuit should have explored the legislative history and purpose behind § 202, as well as other extrinsic materials, to determine how the drafters intended to define the term “abroad.” Even more importantly, had the Court avoided adopting an interpretation of the term, it would have been forced to examine the other clauses of § 202 to determine whether the arbitration clause had merit under the New York Convention. While the court did not address any form of extrinsic materials in its opinion, both House and Senate Reports on the bill codifying the Convention exist as relevant supplementary evidence.156 These reports may not serve as the only indicators of legislative intent, but the difference between the text of the report and the text of the final Code intimates that the Court could use the legislative history as an alternative and practical statutory tool of interpretation. The House Report was a recommendation by the House Judiciary Committee that the bill codifying the Convention be passed.157 The Report contained both a “section-by-section analysis” of the proposed codification as well as a letter from the State Department Acting Assistant Secretary for Congressional Relations to the Speaker of the House.158 Both sections clearly stated that § 202 would hold that “a legal relationship exclusively between citizens of the United States is not enforceable under the Convention in U.S. courts unless it has a reasonable relation with a foreign state.”159 In the month-and-a-half between the publication of the report and the adoption of the public law codifying the Convention, more expansive language was added to the text of § 202; the final language of § 202 included the “envisages performance or enforcement abroad” language, language not discussed in the House Report. Therefore, the Court could rely on legislative history to determine that the changes from the House Report to the final bill indicates that (at least the House) purposefully added the “abroad” clauses as additions to “one or more foreign states.” This argument taken to its logical conclusion would hold that by adding “abroad,” the House wanted a more expansive application of the Convention, beyond just “one or more foreign states.” There is at least a

156 H.R. REP. NO. 91-1181 (1970), reprinted in 1970 U.S.C.C.A.N. 3601, 3601. The House Report was published in June 11, 1970. The bill codifying the Convention was adopted on July 31, 1970. Pub. L. No. 91-368, 84 Stat. 692 (1970); S. REP. NO. 702, 91st Cong., 2d Sess. at 6 (1970). While the Senate ratifies treaties, the House Report is worth discussion because it relates to the bill codifying the Convention. 157 H.R. REP. NO. 91-1181 (1970), reprinted in 1970 U.S.C.C.A.N. at 3602. 158 Id. at 3602–03. 159 Id.

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plausible argument that the House rejected the specific “one or more foreign states” language and added broader terms. The Chairman of the Secretary of State’s Advisory Committee on Private International Law also testified as to the language of § 202 before the Senate Foreign Relations Committee.160 He testified that:

[A]n agreement or award solely between U.S. citizens is excluded unless there is some important foreign element involved, such as property located abroad, the performance of a contract in a foreign county (sic), or a similarly reasonable relation with one or more foreign states. The reasonable relationship criterion is taken from the general provisions of the Uniform Commercial Code. Section 1-105(1) of the code permits the parties to a transaction that bears a reasonable relationship to any other state or nation to specify that the law of that state or nation will govern their rights and duties.161

Furthermore, he found that “it seemed appropriate to incorporate [the UCC] test of reasonable relationship into the implementing legislation on foreign arbitral awards.”162 UCC § 1-105(1) states that “when a transaction bears a reasonable relation to this state and also to another state,” the parties may agree to a choice of law.163 “Failing such agreements, this Act applies to transactions bearing an appropriate relation to this state.”164 The Official Comments to § 1-105(1) provides insight into the meaning and application of “reasonable relation” and affirms that “in general, the test of ‘reasonable relation’ is similar to that laid down by the Supreme Court in Seeman v. Philadelphia Warehouse Co.”165 Seeman was a case dealing with choice of law issues of limited relevance here. One relevant Eleventh Circuit case analyzing the “reasonable relation” test from the UCC simply stated and accepted that this test “is illuminated by [Seeman].”166 “The Code attempts to achieve

160 Jones v. Sea Tow Servs. Freeport N.Y., Inc., 30 F.3d at 365 (citing S. REP. NO. 702, 91st Cong., 2d Sess. app. at 6 (1970)). 161 Id. 162 Fuller Co. v. Compagnie des Bauxites de Guinee, 421 F. Supp. 938, 941 (W.D. Pa. 1976) (quoting Appendix to S. REP. NO. 702). 163 U.C.C. § 1-105 (2012). 164 Id. 165 Id. at cmt. 1. See Seeman v. Philadelphia Warehouse Co., 274 U.S. 403 (1927). 166 Woods-Tucker Leasing Corp. of Georgia v. Hutcheson-Ingram Development Co., 642 F.2d 744, 750 (11th Cir. 1981).

2017] PLAIN MEANING: A-BROAD INVESTIGATION 313 uniformity” by applying these principles “except where it would be unreasonable to do so.”167 It is likely that corporate entities would prefer a bright-line rule defining what a “reasonable relation” entails under the UCC § 1-105 standard. Nevertheless, the drafters of the UCC purposefully chose to adopt a more flexible “reasonableness” approach. While a bright-line rule may be preferable to commercial entities using the UCC, our analysis is still guided by the text. The only guidance provided in the notes is that in order to be a “reasonable relation,” there must be a “significant enough portion of the making or performance of the contract” in a location for jurisdiction to occur.168 If the “reasonable relation” standard enumerated in the text of § 202 is based on the text of UCC § 1-105, there is not a bright-line rule defining what a “reasonable relation” is. In the only other Eleventh Circuit case discussing UCC § 1-105, the Court interpreted Alabama state law adopting the UCC.169 There, the Court looked at Alabama law interpreting the “appropriate relation” language and found that under Alabama law, “appropriate relation” required the relation to be of the “most significant relationship to the transaction.”170 While “appropriate relation” does not necessarily equal “reasonable relation,” it is worth noting how the comments to § 1-105 treat “appropriate relation.” “Cases where a relation to the enacting state is not ‘appropriate’ include, for example, those where the parties have clearly contracted on the basis of some other law.”171 Mere presence alone is not an appropriate relation.172 Furthermore:

Where a transaction has significant contacts with a state which has enacted the Act and also with other jurisdictions, the question what relation is ‘appropriate’ is left to judicial decision . . . Application of the Code in such circumstances may be justified by its comprehensiveness, by the policy of uniformity, and by the fact that it is in large part a reformulation and restatement of the law merchant and of the understanding of a business community, which transcends state and even national boundaries.173

167 Id. 168 U.C.C. § 1-105, n.1. 169 Morris v. SSE, Inc., 912 F.2d 1392, 1395–96 (11th Cir. 1990). 170 Id. at 1396. 171 U.C.C. § 1-105, cmt. 2. 172 Id. 173 Id. at cmt. 3.

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By adopting an erroneous definition of plain meaning, the Eleventh Circuit procured an incomplete analysis. Had the Court taken a more purposive approach and looked to the purpose of the statute, it would have found that the legislative history intimates that the reasonable relation clause subsumes the “abroad” prong of the statute. In interpreting the language of § 202, clauses A and B are examples of reasonable relations as identified in clause C. However, adopting either definition of abroad would create a bright line definition that is either too broad or too narrow; simply being in international waters should not automatically render an individual abroad, but parties need not always be present on foreign soil to be abroad. As a result, neither of the proposed definitions should be adopted. The court should have instead decided the present case under clause C, the “reasonable relation clause,” of § 202. Rather than automatically looking to the plain meaning of the term reasonable relation, which would require defining the standard for reasonableness, the Eleventh Circuit should have directed its analysis toward the purpose behind the reasonable relation clause as illuminated in the UCC. In doing so, it would have found that the arbitrability of Alberts’s contracts should be determined under clause C because Alberts’s contracts with RCCL had a reasonable relation with one or more foreign states. The contracts required him to have a valid passport, provided for repatriation, and required cooperation with local law enforcement regardless of where the ship is located. The ship had an international itinerary which involved port calls in five foreign countries. Finally, the contracts, which are the requisite agreement for the purposes of the Convention, encompassed the entirety of Alberts’s time aboard the ship, not just his trumpet performances.174 As a result, Alberts’s contracts with RCCL had a “reasonable relation with one or more foreign state.” In interpreting treaties, American courts would benefit from adopting the teleological and purposive approaches sanctioned by its jurisdictional counterparts, including but not limited to the United Kingdom as an individual entity and the European Union as a collection of Member States. The United Kingdom and Australia exemplify that even States with a common law have diverged from practicing overly restrictive methods of statutory interpretation. The European Union, through the European Court of Justice, gives an international perspective, exemplifying the manner by

174 Doe v. Princess Cruise Lines, 657 F.3d 1204, 1220 (11th Cir. 2011) (explaining that all claims which “arise from [plaintiff’s] undisputed status as a ‘seaman’ employed by [the cruise line]” may be brought against the cruise line).

2017] PLAIN MEANING: A-BROAD INVESTIGATION 315 which a Court may successfully approach the interpretation of any treaty, even those filled with lacunae and vague language. While Judge Pryor’s original holding proved substantially correct, it was based on a procedurally incorrect and rigid interpretation; interpreting the meaning of entire portions of a treaty based on dictionary definitions has consequences, and the circuit split within Florida acts as an example of one such issue. In plainest terms, identifying the plain-meaning rule as a principal tool of statutory construction sets a fragmented and ought not to be repeated, whether in the United States or abroad. Instead, using different canons of construction as aids to statutory interpretation rather than relying solely on de facto definitions of terms within the text will likely eviscerate many of the debates and splits that exist as to the meaning of the language within statutes. Individuals may intuitively understand the original meaning of a word the minute they see it in a document, but when it comes to legal interpretation, knowing the “why” behind the meaning has proven just as important as knowing the “what.”