Signing ICC Terms of Reference as “Clear and Unmistakable” Delegation of Arbitrability: Eleventh Circuit Affirms Confirmation Against a Non‑Signatory Under the New York Convention

Introduction

This commentary examines the Eleventh Circuit’s unpublished decision in Alfredo Carlos Pott v. Gonzalo Lopez‑Jordan (No. 24‑13071, Sept. 24, 2025), affirming confirmation of a foreign arbitral award under the New York Convention (and the Inter‑American/Panama Convention) against an individual non‑signatory to the underlying contract. The panel held that the appellant’s execution of the ICC Terms of Reference—expressly submitting the issue of arbitrability to the tribunal—constituted written consent to arbitrate arbitrability, thereby binding him to the tribunal’s jurisdictional ruling and the eventual merits award.

The case arises from a dispute over a 2010 Stock Option Agreement (SOA) between Alfredo Carlos Pott (plaintiff‑appellee) and World Capital Properties, Ltd. (WCP). Although Gonzalo Lopez‑Jordan did not sign the SOA, he was named alongside WCP and another individual in an ICC arbitration commenced by Pott. The arbitral tribunal issued a Partial Award in 2016 upholding jurisdiction (on a veil‑piercing theory) and a Final Award in 2021 imposing joint and several liability on WCP, Lopez‑Jordan, and a co‑respondent for breach of obligations under the SOA. After the Southern District of Florida confirmed the award, Lopez‑Jordan appealed on two grounds: lack of subject matter jurisdiction and non‑signatory status.

The Eleventh Circuit rejected both arguments and affirmed, focusing on the dispositive effect of Lopez‑Jordan’s written consent—via the ICC Terms of Reference—to have arbitrability decided by the tribunal.

Summary of the Opinion

The court affirmed confirmation of the foreign arbitral award. Its core holdings and rationale:

Subject matter jurisdiction existed under 9 U.S.C. § 203 for actions “falling under” the New York Convention. Even assuming Article IV’s filing prerequisites are jurisdictional under circuit precedent, the appellee satisfied them by supplying the award and an “agreement in writing.” The court treated the signed ICC Terms of Reference as the agreement in writing for purposes of Article II/IV as to the appellant.
The New York Convention does not categorically bar enforcement against non‑signatories; under the Supreme Court’s decision in GE Energy, domestic doctrines (e.g., veil‑piercing) can support non‑signatory enforcement. The tribunal had already found jurisdiction over Lopez‑Jordan on a veil‑piercing theory.
Most importantly, the appellant signed the ICC Terms of Reference explicitly submitting the issue of arbitrability as a “prior and special ruling” to the tribunal. That signature was “clear and unmistakable” evidence of delegation, so courts defer to the tribunal’s jurisdictional decision under First Options. The tribunal’s Partial Award finding jurisdiction therefore bound the appellant and supported confirmation.
Because the Article IV filing requirement was met, the award was “presumed confirmable,” and the appellant failed to rebut that presumption under the Convention’s limited Article V defenses.

Analysis

Precedents Cited and Their Influence

Bamberger Rosenheim, Ltd. v. OA Dev. Inc., 862 F.3d 1284 (11th Cir. 2017) and Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313 (11th Cir. 2010): Provide the standard of review—de novo for legal conclusions and clear error for factual findings—in reviewing confirmations and denials of vacatur. The panel applied de novo review to the legal questions but ultimately deferred to the tribunal’s arbitrability ruling due to a valid delegation.
Czarina, L.L.C. v. W.F. Poe Syndicate, 358 F.3d 1286 (11th Cir. 2004): Previously characterized Article IV’s filing requirements (award and agreement) as jurisdictional. The panel noted Arbaugh’s modern jurisdictional framework but declined to decide whether Arbaugh abrogated Czarina. Critically, the court held that, even if Article IV were jurisdictional, the appellee met it by supplying the award and the signed Terms of Reference as the “agreement in writing.”
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006): Although not directly applied, Arbaugh’s admonition against “drive‑by jurisdictional rulings” looms in the background. The panel flagged, but did not resolve, whether Czarina’s jurisdictional characterization survives Arbaugh—leaving that question for another day.
GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 590 U.S. 432, 140 S. Ct. 1637 (2020): Pivotal authority confirming that the New York Convention is silent on non‑signatory enforcement and permits courts to apply domestic doctrines (assumption, veil‑piercing, alter‑ego, incorporation by reference, etc.). The panel relied on GE Energy to reject the notion that Article II’s signature requirement categorically forecloses enforcement against non‑signatories.
AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643 (1986) and JPay, Inc. v. Kobel, 904 F.3d 923 (11th Cir. 2018): Establish that courts decide arbitrability unless the parties “clearly and unmistakably” delegate that question to the arbitrator. The panel applied this standard and found clear delegation in the signed ICC Terms of Reference, which expressly listed arbitrability for special determination.
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995): When parties agree to arbitrate arbitrability, judicial review of the arbitrator’s arbitrability decision is highly deferential, set aside only in narrow circumstances. The panel followed First Options by deferring to the tribunal’s Partial Award on jurisdiction.
Lamps Plus, Inc. v. Varela, 587 U.S. 176, 139 S. Ct. 1407 (2019): Reiterates that consent is the foundation of arbitration. The panel turned that principle on its head against the appellant: by signing the Terms of Reference, he consented to arbitrate arbitrability, which then bound him to the tribunal’s jurisdictional ruling and ultimate merits award.

Legal Reasoning

1) Subject Matter Jurisdiction Under the New York Convention

Chapter 2 of the FAA grants federal question jurisdiction for actions “falling under the Convention.” The appellant argued, via Czarina, that Article IV’s filing prerequisites (including an “agreement in writing” under Article II) are jurisdictional and were unmet as to him—a non‑signatory.

The panel avoided a doctrinal detour into Arbaugh by concluding that, even assuming Article IV is jurisdictional, Pott satisfied it:

Article IV requires a party seeking enforcement to supply the award and the “agreement referred to in Article II.”
The court accepted the signed ICC Terms of Reference as the “agreement in writing” for Article II/IV as to the appellant. The Terms of Reference were signed by Lopez‑Jordan and expressly listed arbitrability as a matter to be resolved by the tribunal in a prior and special ruling.

The court further reinforced jurisdiction by citing GE Energy: the New York Convention does not preclude non‑signatory enforcement per se; domestic doctrines (e.g., veil‑piercing) may support jurisdiction and enforcement. The arbitral tribunal had already found jurisdiction over Lopez‑Jordan on a veil‑piercing theory in its Partial Award. The appellant’s “coercion” argument regarding his signature failed; proceeding with a constituted arbitration is not a wrongful threat, and the Terms of Reference reflected his own request for a special ruling on jurisdiction.

2) Delegation of Arbitrability via the ICC Terms of Reference

The opinion’s fulcrum is delegation. Generally, whether parties agreed to arbitrate is for courts unless there is “clear and unmistakable” evidence of delegation to the arbitrator. Here, the delegation was explicit:

Lopez‑Jordan, through counsel, signed the ICC Terms of Reference (ICC Rules art. 23), which identified arbitrability as a discrete issue for the tribunal’s early decision.
This written submission constituted clear and unmistakable consent to arbitrate arbitrability. Under First Options, courts must then defer to the tribunal’s jurisdictional determination and review it only in narrow circumstances.

On that basis, the tribunal’s Partial Award upholding jurisdiction over Lopez‑Jordan controlled, and the district court—and the Eleventh Circuit—properly deferred.

3) Confirmation: Presumption and Failure to Rebut

Once Article IV’s filing requirement is satisfied, a foreign award is “presumed to be confirmable,” shifting the burden to the resisting party to prove one of the limited defenses under Article V of the Convention. Pott satisfied Article IV by submitting the award and the signed Terms of Reference. Lopez‑Jordan offered no sufficient evidence to rebut confirmability—his principal challenge being arbitrability, which he had delegated to the tribunal and lost in a Partial Award. Confirmation was therefore appropriate.

Impact and Implications

Terms of Reference as Written Delegation: The decision underscores that ICC Terms of Reference, when signed by a respondent who contests jurisdiction, can themselves be the dispositive “agreement in writing” evidencing clear delegation of arbitrability to the tribunal. Counsel should treat the Terms of Reference as a contractual instrument with real jurisdictional consequences.
Non‑Signatory Exposure: Post‑GE Energy, the Eleventh Circuit is receptive to enforcing awards against non‑signatories through domestic doctrines like veil‑piercing—especially where the non‑signatory signs a Terms of Reference that empowers the tribunal to decide arbitrability. Individuals who control or are closely affiliated with signatory entities face greater enforcement risk if they sign ICC Terms of Reference without precise reservations.
Article IV Filing Flexibility: The court’s willingness to accept the Terms of Reference as the operative Article II/IV “agreement in writing” for purposes of enforcement against a non‑signatory is notable. Practitioners should be prepared to use (or confront) the Terms of Reference to satisfy Article IV when the underlying contract was not signed by the specific respondent.
Strategic Drafting and Reservations: Parties wishing to preserve a judicial arbitrability decision should consider how they engage with the Terms of Reference. Signing Terms that explicitly commit arbitrability to the tribunal will likely foreclose de novo judicial review later. If preservation is essential, counsel might seek to:
- Propose Terms that explicitly reserve arbitrability for courts, or
- Sign with an explicit, conspicuous reservation that does not submit arbitrability to the tribunal, or
- Decline to sign and promptly seek judicial relief where appropriate.
Whether such approaches will succeed depends on applicable rules and case law, but this decision demonstrates the perils of an unqualified signature.
Unresolved Jurisdictional Question: The panel left open whether Czarina’s treatment of Article IV as jurisdictional survives Arbaugh. Until definitively resolved, litigants in the Eleventh Circuit should assume courts may scrutinize Article IV as a threshold matter, while also recognizing that many panels may, as here, find Article IV satisfied without reaching the broader doctrinal issue.
Practical Takeaway: In ICC arbitrations seated abroad but enforced in U.S. courts, a respondent’s signature on the Terms of Reference can both:
- Constitute clear delegation of arbitrability; and
- Satisfy Article IV’s “agreement in writing” requirement as to that respondent in confirmation proceedings.
This dual function meaningfully strengthens the enforceability of awards against contesting respondents.

Complex Concepts Simplified

New York Convention and Panama Convention: International treaties governing recognition and enforcement of foreign arbitral awards. In U.S. practice, they are implemented by Chapter 2 (and Chapter 3 for the Panama Convention) of the Federal Arbitration Act and are interpreted largely in tandem.
Article II “Agreement in Writing”: Requires an arbitration agreement “in writing” signed by the parties or reflected in an exchange of communications. It ensures a basic written record of consent to arbitrate. The Eleventh Circuit accepted the signed ICC Terms of Reference as such an “agreement” in this case for the non‑signatory appellant.
Article IV Filing Requirements: To confirm a foreign award, the applicant must supply (i) the duly authenticated original award (or certified copy) and (ii) the original arbitration agreement (or certified copy). Meeting this requirement generally triggers a presumption that the award will be confirmed.
Arbitrability: The “who decides” and “what is arbitrable” gateway issues—whether the parties agreed to arbitrate a particular dispute or a party at all. By default, courts decide arbitrability unless there is “clear and unmistakable” evidence the parties delegated the question to the arbitrator.
Delegation: An agreement to have the arbitrator decide arbitrability. Clear evidence can be found in explicit clauses or instruments (here, the ICC Terms of Reference) and, in some jurisdictions, by incorporation of institutional rules that grant tribunals competence to decide their jurisdiction.
Kompetenz‑Kompetenz: The principle, reflected in many institutional rules (including ICC), that an arbitral tribunal may rule on its own jurisdiction. While helpful to tribunals, U.S. courts still require clear evidence that parties agreed to have the tribunal decide arbitrability.
Veil‑Piercing: A doctrine allowing courts (or tribunals) to disregard the corporate form and hold individuals or affiliated entities liable for a company’s obligations where equity demands (e.g., alter ego, misuse of the corporate form). After GE Energy, such doctrines may support non‑signatory enforcement of arbitration agreements and awards.
Presumption of Confirmability: Once Article IV is satisfied, the award is presumed confirmable. The resisting party bears the burden to establish a defense under Article V (e.g., invalid agreement, due process defects, excess of scope, procedural irregularities, award not binding, or public policy). These defenses are construed narrowly.

Conclusion

Although “Not for Publication,” the Eleventh Circuit’s decision offers an important and practical clarification at the intersection of international arbitration and federal confirmation practice. It establishes that a non‑signatory’s signature on ICC Terms of Reference, expressly submitting arbitrability to the tribunal, is “clear and unmistakable” consent to arbitrate arbitrability. That consent binds the non‑signatory to the tribunal’s jurisdictional ruling and paves the way for confirmation of the resulting award under the New York (and Panama) Convention.

The court also harmonizes this outcome with GE Energy’s recognition that the Convention does not bar non‑signatory enforcement and that domestic doctrines such as veil‑piercing remain available. While leaving open the technical question whether Article IV is jurisdictional post‑Arbaugh, the panel demonstrates a pragmatic path: treat the Terms of Reference as the operative written agreement for Article II/IV purposes when the underlying contract lacks a relevant signature.

Key takeaway: In ICC arbitrations, the Terms of Reference are not mere procedural housekeeping. For respondents—especially non‑signatories—they are a high‑stakes instrument. Signing Terms that place arbitrability before the tribunal likely forecloses later judicial relitigation and supports confirmation in U.S. courts. Counsel should draft, negotiate, and sign the Terms of Reference with the same care they give to arbitration agreements themselves.