Full opinion text
OPINION AND ORDER SAND, District Judge. In this action, the Republic of Ecuador (“Ecuador” or “the Republic”), and its state-owned oil company Petroecuador, seek a permanent stay of an arbitration proceeding commenced by defendants ChevronTexaco Corporation (“Chevron-Texaco”) and Texaco Petroleum Company (“TexPet”), as well as other injunctive and declaratory relief. ChevronTexaco and TexPet (collectively “Defendants”) counterclaim against Ecuador and Petroecua-dor (collectively “Plaintiffs”), alleging breach of contract and failure to indemnify an implied agent, and seeking damages as well as injunctive and declaratory relief. The matter is currently before the Court on two motions by Plaintiffs: a motion for summary judgment on their own claims, and a motion to dismiss Defendants’ counterclaims under Rule 12(b) for lack of subject matter jurisdiction and failure to state a claim. Also before the Court are various motions incidental to these two dispositive motions, such as applications to strike certain filings as untimely and for permission to file sur-replies. For the reasons stated below, Plaintiffs’ motion for summary judgment is denied, and Plaintiffs’ motion to dismiss the counterclaims is granted in part, denied in part, and in part left unresolved pending supplemental briefing regarding Ecuadorian law. I. Background Because of the different legal standards governing the various motions before the Court, it is impossible to establish a single and complete set of facts that can be assumed to be true for purposes of this entire Opinion and Order. Before turning to the individual motions, however, it is useful to outline the basic facts regarding which the parties agree, and the procedural history of this action, in order to place the motions and specific factual disputes in context. A. The Napo Concession In 1965, following a grant to them by Ecuador of an oil concession in the Oriente region of that country, known as the “Napo Concession,” TexPet and the Ecuadorian Gulf Oil Company (“Gulf’) entered into a Joint Operating Agreement (the “1965 JOA”). TexPet was named the first “Operator” under the 1965 JOA. The 1965 JOA contained an arbitration clause, requiring the parties to submit disputes to the American Arbitration Association (“the AAA”) in New York. It contained an indemnification clause providing as follows: If the Operator shall exercise its best judgment and care to select competent personnel and competent contractors to carry out and discharge its duties and obligations under this Agreement, the Operator shall not be hable to the Parties in damages or otherwise for its acts or omissions in carrying out and discharging or failing to carry out and discharge its duties and obligations under this Agreement. The Parties shall indemnify and save the Operator harmless from all claims and demands which may be made against Operator by third parties due to, arising out of, or related to the performance by the Operator of its duties under this Agreement. (Perez Aff. Ex. C ¶ 6.4.) It also contained a choice-of-law clause stating that “[t]his Agreement and the relationship - of the Parties hereunder shall be governed by and interpreted in accordance with the laws of the State of New York ... except for those matters which are necessarily governed by the laws of the Republic of Ecuador.” (Id. ¶23.1.) The 1965 JOA provided that it would “inure to the benefit óf and be binding upon the successors and assigns of the parties hereto and each of them respectively.” (Id. ¶ 26.1.) In February 1972, a military government took power in Ecuador. The military government wished to increase the Ecuadorian state’s control over, and participation in, the development of Ecuador’s oil reserves. In furtherance of this goal, on June 6, 1972, the government issued Supreme Decree No. 430, which, inter alia, required TexPet and Gulf “to agree to new oil concession contracts with the Republic and to relinquish a substantial percentage of Napo Concession lands.” (PI. R. 56.1 Stmt. ¶ 52; Def. R. 56.1 Resp. ¶ 52.) The Ecuadorian state-owned oil company Compañía Estatal Petrolera Ec-uatoriana or CEPE, which after reorganization later became plaintiff Petroecuador, immediately began to exploit those portions of the relinquished land where oil production was already ongoing. TexPet and Gulf requested compensation for the land they had relinquished, but these requests were rejected. On or about March 27, 1973, Ecuador published Decree No. 317, which established a Model Contract containing certain new terms to which TexPet and Gulf were required to agree. A modified version of this contract was published on or about August 4, 1973 in Decree No. 925, and signed by Ecuador, TexPet and Gulf on or about August 6,1973. The contract published in Decree No. 925 and signed on August 6, 1973 (the “1973 Contract”) substituted for certain previous contracts; whether the 1965 JOA was among those contracts replaced by it is one of the main points of contention in this case. As had been mandated by Supreme Decree 430 in 1972, “the 1973' Contract incorporated the terms of a 1971 Hydrocarbons Law that gave the Republic greater control over oil pricing and a larger percentage of royalties.” (PI. R. 56.1 Stmt. ¶ 58; Def. R. 56.1 Resp. ¶ 58.) The 1973 Contract also mandated that CEPE be allowed an option to purchase a stake, in the Napo Concession, or Napo Consortium (as Plaintiffs describe the organization formed to explore the Napo Concession), in 1977. The 1973 Contract did not contain an arbitration clause. On or about January 10, 1974, Ecuador issued Supreme Decree No. 9, mandating that CEPE would begin participating in the Napo Concession or Consortium in 1974, rather than in 1977 as had been indicated by the 1973 Contract. In ensuing negotiations, “the Republic informed Texaco and Gulf that CEPE’s 25% partie-ipation in the Napo Consortium would begin on June 6, 1974, whether or not the Republic and the companies had reached an agreement on compensation.” (PI. R. 56.1 Stmt. ¶ 63; Def. R. 56.1 Resp. ¶ 63.) Given this ultimatum and fearing complete expropriation of the Napo Consortium by the Republic if it did not comply, TexPet executed a contract or “Acta” on or about June 14, 1974 (the “1974 Contract”). The other signatories to the compelled 1974 Contract were Gulf, CEPE, and the Republic; Plaintiffs assert that the Republic and CEPE were “acting jointly as one party” (PI. R. 56.1 Stmt. ¶ 68), but Defendants deny this. Under the 1974 Contract, CEPE acquired a 25% share of all of the Napo Concession’s operations, including “proportional parts of all investments, operational costs, obligations, royalties, [and] sales of crude for internal consumption.... ” (PL R. 56.1 Stmt. ¶ 23, quoting Pis.’ Ex. Q. cl. 10; Def. R. 56.1 Resp. ¶ 23.) The 1974 Contract also provided for acquisition of a share of the Trans-Ecuadorian Pipeline by either CEPE or the Republic of Ecuador, but this provision was unilaterally voided by the Republic in 1975. The 1974 Contract did not itself contain a clause providing for arbitration; it did, however, contain a clause stating that “[t]he totality of the activities that will develop in the Joint Operation will be regulated by an operating agreement entered into by the parties” (PI. R. 56.1 Stmt. ¶ 24, quoting Pis.’ Ex. Q. cl. 8; Def. R. 56.1 Resp. ¶ 24), the effect of which the parties dispute. By 1976, Gulf became uncomfortable with its position with respect to the Republic, and began to withhold certain funds from the Republic. The Republic responded by threatening expropriation of Gulfs Napo Consortium assets. Fearing that it would lose its stake in the Consortium without receiving any compensation, Gulf negotiated an agreement, finalized on May 27, 1977, by which Gulfs remaining 37.5% stake in the Consortium was transferred to CEPE (which Plaintiffs assert was again acting as one party with the Republic). This agreement (the “1977 Contract”) contained clauses addressing CEPE’s lack of obligation for certain claims of or against Gulf, the effect of which the parties again dispute. From 1977 to 1990, the Napo Concession or Consortium continued to operate with TexPet and CEPE/Petroecuador as the only partners and TexPet as the Operator. On January 22, 1985, however, TexPet and CEPE entered into an agreement providing for CEPE to take over as Operator on one year’s notice (the “1985 Agreement”). On July 1, 1990, pursuant to an agreement signed by representatives of Petroe-cuador and TexPet the previous day (the “1990 Agreement”), Petroamazonas, a subsidiary of Petroecuador, replaced TexPet as the Operator of the Napo Concession. On March 25, 1991, Petroecuador, TexPet, and Petroamazonas entered into an “Operating Agreement” for the “Petroecuador-Texaco Consortium” (the “1991 Agreement”), which agreement specified that it would “be effective [retroactively] as of the first day of July 1990 and remain in effect until the termination of the [1973] Contract.” (Supplementary Kolis Decl. Ex. 1.) The -expiration date of the Napo Concession as provided in the 1973 Contract was June 6,1992. B. Aguinda v. Texaco, the 1995 Settlement, and the Lago Agrio Action In 1993, an action captioned Aguinda v. Texaco was brought in the United States District Court for the Southern District of New York by a group of residents of the Oriente region of Ecuador (the “Aguinda Plaintiffs”), against Texaco, Inc., which has since become a wholly owned subsidiary of defendant ChevronTexaco by merger. The Aguinda Plaintiffs “alleged that between 1964 and 1992 Texaco’s oil operation activities polluted the rain forests and rivers in Ecuador.... ” Aguinda v. Texaco, Inc., 303 F.3d 470, 473 (2d Cir.2002). They “sought money damages under theories of negligence, public and private nuisance, strict liability, medical monitoring, trespass, civil conspiracy, and violations of the Alien Tort Claims Act,” as well as extensive equitable relief to redress contamination of the water supplies and environment, including: financing for environmental cleanup to create access to potable water and hunting and fishing grounds; renovating or closing - the Trans-Ecuadorian Pipeline; creation of an environmental monitoring fund; establishing standards to govern future Texaco oil development; creation of a medical monitoring fund; an injunction restraining Texaco from entering into activities that risk environmental or human injuries, and restitution. Id. at 473-474. The procedural history of the Aguinda litigation is outlined in detail in Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir.2002), and Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998). Although it would be duplica-tive to recite that entire history here,. a brief summary is appropriate. In November 1996, on Texaco’s motion, the case was dismissed by the district court (Rakoff, J.) on grounds of forum non conveniens, international comity, and failure to'join indispensable parties, specifically Ecuador and Petroecuador, whose presence was held to be necessary to effectuate the extensive equitable relief requested, but impossible to obtain in light of them sovereign immunity. Aquinda v. Texaco, Inc., 945 F.Supp. 625 (S.D.N.Y.1996). The Second Circuit in 1998 vacated the dismissal and remanded the ease for reconsideration, Jota, 157 F.3d at 163, holding that a forum non conveniens dismissal was inappropriate absent a requirement that Texaco consent to Ecuadorian jurisdiction, id. at 159; that the comity determination had potentially been undermined by Ecuador’s change from opposing litigation of the issue in a United States court to supporting that litigation, id. at 160-161; and that the indispensable-party theory, while perhaps correct as to some of the relief requested, was insufficient to support dismissal of the entire complaint, id. at 162. On remand, Texaco having consented to jurisdiction in Ecuador, the district court again dismissed the case on grounds of forum non conve-niens. Aguinda v. Texaco, Inc., 142 F.Supp.2d 534 (S.D.N.Y.2001). The Second Circuit affirmed. Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir.2002). During the pendency of the Aguinda litigation, TexPet, Ecuador and Petroecua-dor entered into several agreements regarding environmental remediation. Following a December 1994 Memorandum of Understanding, those parties in May 1995 signed a contract the name of which has been translated as “Contract For Implementing Of Environmental Remedial Work and Release From Obligations, Liability and Claims” (hereinafter referred to as the “1995 Settlement”). In the 1995 Settlement, TexPet agreed to perform specified environmental remedial work in exchange for a release of claims by the Government of Ecuador and Petroecuador. This release, granted to TexPet, Texaco, Inc., and other related companies, encompassed by its terms “all the Government’s and Pe-troecuador’s claims against the Releasees for Environmental Impact arising from the Operations of the Consortium, except for those related to the obligations contracted” under the 1995 Settlement itself, which were to be “released as the Environmental Remedial Work is performed to the satisfaction of the Government and Petroecua-dor.” (Veiga Aff. Ex. B at 9.) By a “Final Document” dated September 30, 1998 (the “1998 Final Release”), the 1995 Settlement was declared to be “fully performed and concluded,” and the Government and Pe-troecuador “proeeed[ed] to release, absolve, and discharge” TexPet and related companies “from any liability and claims by the Government of the Republic of Ecuador, PETROECUADOR and its Affiliates, for items related to the obligations assumed by TEXPET in” the 1995 Settlement. (Veiga Aff. Ex. D at Part IV.) In May 2003, following the final dismissal of the Aguinda litigation, a group of individuals that Plaintiffs allege included “a substantial number of the Aguinda Plaintiffs” filed claims against Chevron-Texaco in Lago Agrio, Ecuador. One of the laws upon which the plaintiffs in this Lago Agrio litigation based their claims, although not the only law, was an Ecuadorian environmental law enacted in 1999. Defendants contend that this law in effect allows the plaintiffs in the Lago Agrio litigation to assert, as private attorneys general, claims that belonged to Ecuador but were released by the 1995 Settlement and 1998 Final Release. C. Procedural History of This Litigation On June 11, 2004, ChevronTexaeo and TexPet commenced an arbitration proceeding against Petroecuador before the AAA, claiming a right to indemnification for their costs and expenses in connection with the Lago Agrio litigation. They sought a monetary award for breach of contract, specifically breach of the 1965 JOA, which they alleged “require[d] Petroecuador to indemnify Chevron Texaco and TexPet for Petroecuador’s share of all claims arising out of TexPet’s role as Operator of the Napo Concession.” (Kolis Decl. Additional Docs. Ex. 1 ¶ 54.) This award was to be in the amount of “the total value of their costs, fees, and any adverse judgment rendered in the Lago Agrio lawsuit, plus interest.” (Id. ¶ 59.) ChevronTexaeo and TexPet further sought “injunctive relief requiring Petroecuador to pay all fees, costs, and expenses associated with the Lago Agrio litigation that may be incurred in the future, including the amount of any potential adverse final judgment rendered against ChevronTexaeo in the Lago Agrio litigation.” (Id. ¶ 62.) TexPet, although purportedly not ChevronTexaeo, further sought “a declaratory judgment that the [1965] JOA’s indemnity provision is valid and binding, and that Petroecuador is responsible to indemnify and hold harmless TexPet and ChevronTexaeo ... for ... all fees, costs and expenses relating to the Ecuadorian lawsuit, including any final judgment that may be rendered against ChevronTexaeo in Ecuador.” (Id. ¶ 66.) On October 15, 2004, Plaintiffs commenced an action in New York State Supreme Court, New York County, against Defendants and the AAA, seeking an order and judgment staying the arbitration proceeding that had been brought by Defendants against Petroecuador. Proceeding by petition under section 7503 of the New York Civil Practice Law and Rules (CPLR) and “the exception to.. CPLR § 7503(c) that was established by the New York Court of Appeals in Matarasso v. Continental Casualty Company, 56 N.Y.2d 264, 451 N.Y.S.2d 703, 436 N.E.2d 1305 (1982),” they asserted as the basis for their petition that “the Petitioners never agreed to arbitrate.” (Notice of Removal Ex. 3 ¶ 25.) Defendants removed the action to this Court by notice of removal filed on October 22, 2004. Following, removal, Defendants Chev-ronTexaco and TexPet responded to the petition by filing first a Memorandum of Law in Opposition to Motion for Preliminary Injunction (Defendants having interpreted Plaintiffs’ actions in state court as a request for such a preliminary injunction), and then an Answer. The AAA responded by filing a motion to dismiss the petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In a Memorandum and Order dated December 7, 2004, this Court granted the AAA’s motion and dismissed the action insofar as it named the AAA as a party defendant, finding the AAA to be neither a necessary or proper party under the well-established legal principle of arbitral immunity. Plaintiffs then moved for leave to amend their complaint, see Fed. R. Civ. Pro. 15(a), and leave to file an amended complaint was granted without opposition. Plaintiffs’ Amended Complaint, filed on December 8, 2004, restates their demand for a permanent stay of arbitration proceedings, and asserts several additional claims for relief as well. At oral argument, Plaintiffs’ counsel represented that these additional claims are contingent, such that the Court need address them only if it concludes that the arbitration should not be dismissed; the Amended Complaint, however, does not explicitly make the additional claims contingent upon failure of the arbitration claim. ■ The additional claims for relief all focus on alleged inconsistencies' between positions purportedly taken by Defendants in demanding arbitration and positions taken by Texaco during the Aguinda litigation. First, Plaintiffs claim that collateral estop-pel precludes relitigation of the issue of “the Republic of Ecuador and Petroecua-dor’s sovereign immunity in this matter,” because this issue “was actually litigated and determined in the District Court’s 1996 Aguinda v. Texaco decision” and “[t]he District Court’s 1996 holding that the Republic of Ecuador and Petroecuador enjoyed sovereign immunity in the United States was essential to the District Court’s ultimate dismissal of the case under the doctrine of forum non conveniens and the affirmance of that decision by the Second Circuit.” (Am.Compl.lffl 64-67.) Second, Plaintiffs claim that the doctrine of judicial estoppel prevents Defendants from asserting that Petroecuador agreed to arbitration, because this assertion is inconsistent with the position taken by Texaco in the Aguinda litigation regarding the sovereign immunity of Ecuador and Petroecuador. Third, Plaintiffs claim that Texaco’s failure to seek arbitration against Petroecuador during the pendency of the Aguinda litigation constituted a waiver of the right to arbitrate. The prayer for relief in Plaintiffs’ Amended Complaint requests both “a permanent and final injunction, staying the arbitration proceedings ... before the AAA” (Am. Compl. Prayer for Relief ¶ (C)), and other injunctive and declaratory relief with respect to various aspects of Plaintiffs’ claims. Plaintiffs request a ten-part declaratory judgment, the substance of which can be understood as comprising six parts: (1) that their collateral estoppel, judicial estoppel, and waiver theories are meritorious; (2) that “[njeither ... Ecuador nor Petroecuador has ever agreed to arbitrate any disputes with Texaco in any American forum” and “there are no valid grounds upon which Texaco may demand arbitration against ... Ecuador or Petroe-cuador” (id. ¶¶ (A)(i)-(A)(j)); (3) that the 1973 Contract and not the 1965 JOA controls the contractual relationship between Plaintiffs and Defendants; (4) that Plaintiffs are “a single party for the purposes of their contractual relationship with Texaco” (id. ¶ (A)(0); (5) that neither Ecuador nor Petroecuador has waived sovereign immunity in the United States in this matter; and (6) that “Aguinda v. Texaco involved the same claims, brought by many of the same plaintiffs, as the case currently pending in Lago Agrio, Ecuador on which Texaco seeks indemnification from Petroecuador in this matter” (id. ¶ (A)(c)). Plaintiffs further request that the Court “[ijssue ... permanent and final injunction^], estopping Texaco from denying that the Republic of Ecuador and Pe-troecuador enjoy sovereign immunity in the United States in this matter .... [and] barring Texaco from asserting a right to indemnification against the Republic of Ecuador and Petroecuador in this matter.” (Id. ¶ (B)-(C).) In response to this Amended Complaint, Defendants, on January 10, 2005, filed an Answer containing several counterclaims. The counterclaims brought against Petroe-cuador are explicitly conditional, in the sense that Defendants commit not to litigate them in this Court unless “the arbi-trability question raised by the Amended Complaint is decided in favor of Petroecua-dor.” (Countered 5.) The counterclaims against the Republic of Ecuador are not conditional. The first counterclaim, asserted against Petroecuador only, is for “indemnification of [an] implied agent.” (Countercls.lffl 65-70.) Petroecuador, Defendants allege, is bound to indemnify ChevronTexaco and TexPet for their costs and expenses in the Lago Agrio litigation, and any final judgment therein, because after Petroecuador’s entry into the Napo Consortium “TexPet ... operated the Consortium as Petroe-cuador’s agent” and “[t]he litigation expenses and costs of any judgment in the Lago Agrio litigation have been and will be incurred within the scope of the agency relationship.” (Countercls.lffl 66-67.) The second and third counterclaims are asserted against both Ecuador and Pe-troecuador, and concern alleged breaches of the 1995 Settlement and 1998 Final Release. Specifically, Ecuador and Petroe-cuador are said to have breached those agreements by “allowing the Lago Agrio lawsuit to proceed as a private-attorney-general action,” by “refusing to inform the court in Lago Agrio that they owned and released all rights to environmental remediation or restoration by TexPet in the concession area,” and by not “indemnifying ChevronTexaco and TexPet for any of their costs” in the Lago Agrio litigation. (Countercls.f 75.) Defendants seek damages for costs that they have incurred in the Lago Agrio litigation or that they will incur in the future, and an injunction “requiring the Republic of Ecuador and Petroecuador to pay all fees, costs and expenses associated with the Lago Agrio litigation that .may be incurred in the future, including the amount of any potential adverse final judgment rendered against ChevronTexaco in the Lago Agrio litigation” (CounterclsV 81). In Defendants’ fourth counterclaim, they seek a declaratory judgment addressing the same subject matter as the first three counterclaims. The judgment that they request would declare that Petroecuador is in breach of its obligations to indemnify TexPet for Consortium operations, that the Republic of Ecuador and Petroecuador are in breach of their obligations under the 1995 Settlement and 1998 Final Release ... and that the Republic of Ecuador and Pe-troecuador are obligated to intervene in the Lago Agrio litigation and inform the Ecuadorian court that they owned and released all rights to environmental remediation or restoration by TexPet in the concession area, and to indemnify and hold harmless TexPet and Chevron-Texaco for any and all fees, costs and expenses relating to the Ecuadorian lawsuit, including any final judgment that may be rendered against ChevronTexa-co in Ecuador. (CounterclsJ 84.) That is, the judgment requested by Defendants would declare the correctness of Defendants’ positions with respect to both the implied-agency claim against Petroecuador and the settlement-based claims against Ecuador and Petroecuador. Plaintiffs responded to the counterclaims, as has already been mentioned, not by answer but by motion to dismiss pursuant to Rule 12(b), asserting both lack of subject-matter jurisdiction and failure to state a claim. Shortly after filing this motion on January 31, 2005, they filed, on February 7, the motion for summary judgment that is now before the Court. On February 28, Plaintiffs filed an additional motion to stay discovery pending resolution of the two dispositive motions. Defendants also having filed their responses to the two dispositive motions on February 28, Plaintiffs then filed, on March 1, a motion to strike Defendants’ responses as untimely, or, in the alternative, for a preliminary injunction and additional time to reply. Following a telephone conference on March 2, the Court ordered all proceedings in the arbitration stayed until the pending motions for permanent stay of arbitration proceedings were decided or until further order of this Court. The subsequent briefing on both dispositive motions led to a motion by Defendants for permission to file sur-replies in opposition, in response to which Plaintiffs moved for permission to file a response to the sur-replies. Oral argument was then held, and the Court reserved decision. II. Jurisdiction and Venue A. Subject Matter Jurisdiction Over Plaintiffs’ Claims Although no party has disputed that this Court has subject-matter jurisdiction over plaintiffs’ claims, the Court must nevertheless determine whether such jurisdiction exists. Da Silva v. Kinsho Int’l Corp., 229 F.3d 358, 361 (2d Cir.2000). Plaintiffs have alleged two sources of federal subject-matter jurisdiction for the claims contained in their Amended Complaint: diversity jurisdiction under 28 U.S.C. § 1332, and federal-question jurisdiction pursuant to 28 U.S.C. § 1331 and 9 U.S.C. §§ 201-OS, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Defendants initially removed the action pursuant to the same claimed sources of jurisdiction, as well as two others: federal-question jurisdiction pursuant to the Inter-American Convention on International Commercial Arbitration, specifically 9 U.S.C. § 302, and general federal-question jurisdiction due to the applicability of the federal substantive law of arbitration. Because the source of the Court’s jurisdiction may determine the appropriate choice of governing law, see Smith/Enron Cogeneration Ltd. P’ship v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 95 (2d Cir.1999), and Part III.B.l.a infra, it is prudent to examine all of the potential sources. 1. Diversity Jurisdiction The Court has diversity jurisdiction over the subject matter of Plaintiffs’ claims pursuant to 28 U.S.C. § 1332(a)(4), which allows such jurisdiction “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a state or different states.” 28 U.S.C.A. § 1332(a) (West 2005). Plaintiffs and Defendants agree that the amount in controversy exceeds the value of $75,000 (Not. of Removal ¶ 2(e); Am. Compl. ¶ 14; Ans. ¶ 14), and this appears to be so. Defendants, both corporations incorporated in Delaware and with principal places of business in California, are “citizens of a state or of different States” for diversity purposes. And whatever the outcome of the dispute between Plaintiffs and Defendants regarding whether Petroecuador is legally distinct from the Republic, the foreign-state-as-plaintiff condition of § 1332(a)(4) jurisdiction is also met. Plaintiffs are foreign states as that term is defined in 28 U.S.C. § 1603(a), whether or not Petroecuador has a legal identity independent from the Republic. Ecuador is a foreign state in the simplest meaning of that term. On Plaintiffs’ view, Petroe-cuador is a kind of doing-business-as name for Ecuador. On Defendants’ view, Pe-troecuador is “a separate legal person ... a majority of whose ... ownership interest is owned by a foreign state ... and ... which is neither a citizen of a State of the United States ... nor created under the laws of any third country,” 28 U.S.C.A. § 1603(b), and thus is “an agency or instrumentality of a foreign state as that term is defined in [28 U.S.C. § 1603](b),” 28 U.S.C.A. § 1603(a). In either case, Pe-troecuador, like the Republic of Ecuador, is covered by § 1332(a)(4). Furthermore, while § 1332(a)(4) only speaks of an action in which “a foreign state” is plaintiff, not an action in which two foreign states are plaintiffs, it would nevertheless apply even if Petroecuador were considered to be a legal entity distinct from the Republic. The Second Circuit’s statement that in the § 1603(a) context “agencies and instrumentalities ... are subsumed within the ‘foreign state’ .... [and] deemed part of the foreign state,” Filler v. Hanvit Bank, 378 F.3d 213, 219 (2d Cir.2004) (emphasis in original), strongly suggests that Petroecuador would be deemed part of the single “foreign state” of Ecuador for purposes of § 1332(a)(4) despite any independent legal identity it might have. Even assuming ar-guendo that Petroecuador did qualify as a § 1603(a) “foreign state” separate from Ecuador, § 1332(a)(4) would still apply because of the rule that “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise ... words importing the singular include and apply to several persons, parties, or things.” 1 USCS § 1 (2005). There is no apparent contextual reason why a suit should not be subject to diversity jurisdiction simply because it is brought by both a foreign state and an instrumentality of that same foreign state. Thus, all of the conditions for § 1332(a)(4) jurisdiction are satisfied here. 2. Federal-Question Jurisdiction The Court would have federal-question jurisdiction over the subject matter of this action if the action were governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 (“the New York Convention” ), 21 U.S.T. 2517, 330 U.N.T.S. 38, reprinted at 9 U.S.C.A. § 201 note (West 2004), or the Inter-American Convention on International Commercial Arbitration of January 30, 1975 (“the Inter-American Convention”), O.A.S.T.S. No. 42, reprinted at 9 U.S.C.A. § '301 note. Chapter Two of the Federal Arbitration Act (FAA), implementing the New York Convention, provides that “[a]n action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States ... [and][t]he district courts of the United States ... shall have original jurisdiction over such action or proceeding, regardless of the amount in controversy,” 9 U.S.C.A. § 203, and also provides for removal to federal court “[wjhere the subject matter of an action or proceeding pending in a state court relates to an arbitration agreement or award falling under the Convention,” 9 U.S.C.A. § 205. Chapter Three of the FAA, implementing the Inter-American Convention, makes the original-jurisdiction and removal provisions of Chapter Two applicable to that Convention as well. 9 U.S.C.A. § 302 (stating that 9 U.S.C. §§ 202-205, and § 207, “shall apply to this chapter as if specifically set forth herein, except that for purposes of this chapter ‘the Convention’ shall mean the Inter-American Convention”). Defendants’ suggestion that the mere applicability of the 'federal substantive law of arbitration would be sufficient to provide federal-question jurisdiction under 28 U.S.C. § 1331 is incorrect, however. The original FAA, now Chapter One of that statute, “creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate, yet ... does not create any independent federal-question jurisdiction under 28 U.S.C. § 1331 ... or otherwise.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Thus, whether federal-question jurisdiction exists depends upon whether either the New York Convention or the Inter-American Convention (collectively “the Conventions”) applies. As a general matter, the Conventions are enforceable in United States courts where, as here, a written agreement purportedly exists that provides for arbitration in the United States (or another signatory nation), and the legal relationship out of which the alleged arbitration agreement arises is a commercial one with a significant connection to a foreign country. See 9 U.S.C.A. §§ 201-202, 301-302; Smith/Enron Cogeneration Ltd. P’ship v. Smith Cogeneration Int'l, Inc., 198 F.3d 88, 92 (2d Cir.1999); Productos Mercan- tiles E Industriales, S.A. v. Faberge USA, 23 F.3d 41, 44—15 (2d Cir.1994). It is immaterial that the alleged arbitration agreement, comprised of the 1965 JOA and Petroecuador’s purported accession thereto in the early 1970s, partially predates the New York Convention (which entered into force in the United States in 1970, see 9 U.S.C.A. § 201 note), and completely predates the Inter-American Convention (which began its existence in 1975 and did not enter into force in the United States until 1990, see 9 U.S.C.A. § 301 note). The Second Circuit has observed with respect to the New York Convention that “the Convention contains no prospective language and should be applied retroactively to existing arbitration agreements and awards.” Fotochrome, Inc. v. Copal Co., 517 F.2d 512, 515 n. 3 (2d Cir.1975). The Inter-American Convention contains no “prospective language” not present in the New York Convention, and the Second Circuit has stated that “[t]he legislative history of the Inter-American Convention’s implementing statute ... clearly demonstrates that Congress intended the Inter-American Convention to reach the same results as those reached under the New York Convention,” Productos Mercantiles, 23 F.3d at 45. Thus, Fotochrome’s retroactivity holding should apply to the Inter-American Convention as well. The fact that “the United States acceded to the Convention[s] after the contract in suit was signed,” Fotochrome, 517 F.2d at 515 n. 3, therefore does not alter the general applicability of either of the Conventions to the legal relationship at issue here. The more difficult question is whether either or both of the Conventions are applicable to provide jurisdiction over this particular action. Article II of the New York Convention provides for recognition of an “agreement in writing” to submit to arbitration, and further provides that a court having before it “an action in a matter in respect to which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless the said agreement is null and void, inoperative or incapable of being performed.” 9 U.S.C.A. § 201 note (West 2004). In this action, however, Plaintiffs do not request the Court to refer the parties to arbitration, but rather ask the Court to prevent arbitration, and to grant them other injunctive and declaratory relief as well. It is not at all clear that an action seeking such relief “fall[s] under the [New York] Convention” within the meaning of 9 U.S.C. § 203, so as to provide this Court with original jurisdiction. The Inter-American Convention says still less about judicial intervention before the stage at which an arbitration award exists, stating only that “[a]n agreement in which the parties undertake to submit to arbitral decision any differences that may arise or have arisen between them with respect to a commercial transaction is valid,” 9 U.S.C.A § 301 note, so it would seem If anything less likely to provide jurisdiction (under § 203 as incorporated by § 302) for a petition to stay arbitration. That the implementing law for both the New York Convention and the Inter-American Convention incorporates chapter one of the FAA to the extent it is not inconsistent with them, 9 U.S.C.A. §§ 208, 307, does not change this result, as “the FAA does not provide for petitions (such as [Plaintiffs’] ) brought by the party seeking to stay arbitration.” Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir.2003). The Second Circuit has suggested that “the [New York] Convention [is] inapplicable ... [where] the party invoking its provisions did not seek either to compel arbitration or to enforce an arbitral award.” International Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 391 n. 5 (2d Cir.1989). This suggestion would preclude invocation of the New York Convention— and presumably the Inter-American Convention as well, see Productos Mercantiles, 23 F.3d at 45 — by a party simply seeking to stay arbitration, let alone one also seeking to obtain broader declaratory and in-junctive relief. In Borden v. Meiji Milk Products Co., 919 F.2d 822, 826 (2d Cir.1990), the Second Circuit expanded the category of parties allowed to invoke the New York Convention somewhat when it “h[e]ld that entertaining an application for a preliminary injunction in aid of arbitration is consistent with the court’s powers pursuant to [the Convention].” This holding, however, was coupled with an emphasis on the fact that “far from trying to bypass arbitration, Borden sought to have the court compel arbitration.” 919 F.2d at 826. There appears to be little or no basis in Second Circuit case law for invocation of the New York Convention or the Inter-American Convention by a party seeking to avoid arbitration, rather than compel or aid it. ■ In this case, however, the parties who initially sought the exercise of federal jurisdiction were Defendants, under the removal provision applicable to the Conventions. That provision, 9 U.S.C. § 205 (made applicable to the Inter-American Convention by 9 U.S.C. § 302), allows removal “[w]here the subject matter of an action or proceeding pending in state court relates to an arbitration agreement or award falling under the Convention,” whether or not this relationship “appear[s] on the face of the complaint.” 9 U.S.C.A. § 205. The logic of Borden suggests that this aspect of Convention jurisdiction was available to Defendants: they were seeking to allow arbitration to continue, while Plaintiffs were the ones who sought to “bypass” it by their application for a stay of arbitration pursuant to Article 75 of the CPLR. The fact that Plaintiffs dispute the existence. of any “arbitration agreement” between the. parties is irrelevant to the question, of subject matter jurisdiction under the Conventions. In Sarhank Group v. Oracle Corp., 404 F.3d 657, 660 (2d Cir.2005), the Second Circuit rejected the argument that “the district court lacked subject matter jurisdiction in the absence of a signed written arbitration agreement between the parties,” where the dispute before the court concerned whether respondent Oracle Corp. was legally bound to arbitrate by a contract entered into between petitioner Sarhank and a subsidiary of Oracle. According to Sarhank, “[w]hen a party challenges the court’s subject matter jurisdiction based upon the merits of the case,” such as by disputing whether it is bound by an arbitration agreement it did not itself sign, “that party is merely arguing that the adversary has failed to state a claim ... [and][t]he court has and must assume subject matter jurisdiction and hear the merits of the case.” 404 F.3d at 660. Thus, this Court had federal-question removal jurisdiction, pursuant to 9 U.S.C. § 205, over Plaintiffs’ application to stay the arbitration. Plaintiffs’ decision to file an amended complaint after removal should not alter the jurisdictional situation with regard to their application for a stay of arbitration. The amended complaint still contains the same application for a stay under Article 75 of the CPLR (specifically CPLR § 7503), a New York procedural rule that the Court is requested to “borrow” as an alternative to issuing a stay under the FAA and the All Writs Act. (Am. Comply 13.) That Plaintiffs have chosen to add other claims for relief and other proposed sources of jurisdiction, in addition to what was present in the removed action, should not operate to deprive the Court of any federal-question jurisdiction it had upon removal. This is so both as a matter of logic, and because it would be incompatible with the basic purpose of a removal provision for the addition of other claims to deprive Defendants of any protection granted them by the existence of federal-question jurisdiction under 9 U.S.C. § 205. With respect to Plaintiffs’ requests for broader injunctive and declaratory relief pertaining to their waiver and estoppel theories, however, federal-question jurisdiction is lacking. Those claims for relief were not part of the removed action, do not fall within 9 U.S.C. § 203 as interpreted in International Shipping and Borden, and do not raise a jurisdiction-bestowing federal question in any other respect. The Court’s jurisdiction over those claims for relief must therefore stem solely from 28 U.S.C. § 1332, or perhaps from 28 U.S.C. § 1367(a) (supplemental jurisdiction). This implies that New York choice of law rules apply to those claims. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir.1989). B. Subject Matter Jurisdiction Over Defendants’ Counterclaims Unlike the existence of subject-matter jurisdiction over Plaintiffs’ claims, the existence of subject-matter jurisdiction over Defendants’ counterclaims is vehemently contested: Plaintiffs have moved pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss Defendants’ counterclaims for, inter alia, lack of such jurisdiction. Because the issue has been raised by a distinct motion so briefed by the parties, and because deferring consideration of it is more analytically appropriate in other respects, the question of jurisdiction over the counterclaims will be addressed in a subsequent portion of this Opinion and Order. See infra Part IV. A. C. Personal Jurisdiction and Venue Defendants do not dispute the existence of personal jurisdiction, any objection with respect to which is therefore waived. Defendants also do not dispute the appropriateness of venue in the Southern District of New York, any objection to which is also waived. Plaintiffs, too, do not raise, and therefore waive, any objection as to personal jurisdiction or venue with respect to Defendants’ counterclaims.- III. Plaintiffs’ Motion for Summary Judgment A. Legal Standard The standard under which Rule 56 motions for summary judgment are evaluated is a familiar one. “Summary judgment is appropriate only where ... the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Carroll v. United States, 339 F.3d 61, 67 (2d Cir.2003); Steel Partners II, L.P. v. Bell Indus., Inc., 315 F.3d 120, 123 (2d Cir.2002) (internal quotations omitted). “In assessing the record, all ambiguities and reasonable inferences are viewed in a light most favorable to the nonmoving party.” Vona v. County of Niagara, 119 F.3d 201, 206 (2d Cir.1997). “The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists.” Marvel Characters v. Simon, 310 F.3d 280, 286 (2d Cir.2002). While “[t]he mere existence of a scintilla of evidence in support of the [nonmovants’] position will be insufficient” to defeat a motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), “[s]ummary judgment is improper if there is any evidence in the record that could reasonably support a .... verdict for the non-moving party,” Marvel Characters, 310 F.3d at 286. “On a motion for summary judgment, the court is not to weigh the evidence, or assess the credibility of the witnesses, or resolve issues of fact, but only to determine whether there are issues to be tried.” United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994). B. Analysis Plaintiffs raise three distinct arguments in support of their contention that no genuine issue of material fact precludes the determination that Defendants’ dispute with Petroecuador is not arbitrable. Their primary argument is that Petroecuador never agreed to arbitrate disputes such as the one at issue. Plaintiffs also assert that the doctrine of waiver, and the act of state doctrine as applied to the 1973 Contract, provide independent grounds on which to find that Defendants are barred from seeking arbitration against Petroecuador, even if an otherwise-valid arbitration agreement exists. 1. Agreement to Arbitrate “In considering whether ‘a particular dispute is arbitrable,’ a court must first decide ‘whether the parties agreed to arbitrate.”’ Smith/Enron Cogeneration Ltd. P’ship v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 95 (2d Cir.1999) (quoting Chelsea Square Textiles, Inc. v. Bombay Dyeing & Mfg. Co., 189 F.3d 289, 294 (2d Cir.1999)). The Second Circuit “ha[s] held that whether an entity is a party to the arbitration agreement also is included within the broader issue of whether the parties agreed to arbitrate.” Id. At issue here is whether Petroecuador is, or was,, a party to an arbitration agreement covering the dispute in question. It is common ground between the parties that Petroecuador “never signed an arbitration agreement with [either defendant], the customary implementation of an agreement to arbitrate,” Sarhank Group v. Oracle Corp., 404 F.3d 657, 662 (2d Cir.2005). Defendants contend, however, that Petroecuador became a party to the 1965 JO A, which contained an arbitration clause, when Petroecuador acquired its stake in the Napo Consortium. As they explain it, the 1973 Contract that accompanied Petroecuador’s entry into the Consortium replaced the 1964 concession agreement between Ecuador and the concessionaires, but did not affect the 1965 JOA, which continued to govern relations among the members of the Consortium (one of which, after 1973, was Petroecua-dor). Even though Petroecuador did not sign the 1965 JOA, Defendants assert, it knowingly accepted benefits from the 1965 JOA and proceeded as if the 1965 JOA controlled its relationship with TexPet. Thus, Defendants conclude, Petroecuador is bound by the arbitration clause within the 1965 JOA. Plaintiffs, in contrast, assert that the 1973 Contract was a novation that replaced the 1965 JOA, and that the 1973, 1974 and 1977 Contracts — none of which contain an arbitration clause — governed Petroecua-dor’s relationship with the other members of the Napo Consortium. According to Plaintiffs, the notion that the 1965 JOA and the arbitration clause within it apply to Petroecuador is “purely a recent invention of Chevron[T]exaco’s lawyers.” (Oral Ar. Tr. at 3.) The 1965 JOA and the arbitration clause within it, Plaintiffs contend, do not in any way bind Petroecuador. a. Governing Law To decide whether sufficient issues of material fact exist to preclude the grant of summary judgment on the theory that Petroecuador never agreed to arbitrate, it is necessary to ascertain what law governs this Court’s determination of whether Pe-troecuador became bound by the 1965 JOA and the arbitration clause within it. “We first look to the substantive law of the action to determine which facts are material,” Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir.2004), and to do so, we must know to what substantive law we shall look. Specifically, we must determine whether New York law, federal common law, or Ecuadorian law should govern the question of whether Petroecuador is bound by an agreement to arbitrate. Several recent Second Circuit cases support the application of state law to the question of whether a party is bound by a purported agreement to arbitrate. Bell v. Cendant Corp., 293 F.3d 563 (2d Cir.2002), held that “[bjecause an agreement to arbitrate is- a creature of contract ... the ultimate question of whether the parties agreed to arbitrate is determined by state law,” and applied Connecticut law to ascertain if the parties had agreed to allow the arbitrator to determine arbitrability. 293 F.3d at 566. Bell cited the Supreme Court’s statement in First Options v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), that “when deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” Shaw Group, Inc. v. Triplefine Int’l Corp., 322 F.3d 115, (2d Cir.2003), in turn cited Bell and First Options for the proposition- that “[wjhether parties have obligated themselves to’ arbitrate certain issues, including the question of arbitrability, is determined by state law.” 322 F.3d at 120. Similarly, Chelsea Square Textiles, Inc. v. Bombay Dyeing & Mfg. Co., 189 F.3d 289, 294 (2d Cir.1999), described “the determination that parties have contractually bound themselves to arbitrate disputes” as “a determination involving interpretation of state law.” Accord Progressive Casualty Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 45-46 (2d Cir.1993) (citing Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)). Following these cases here could result in the application of New York substantive law, or possibly the application of Ecuadorian substantive law under New York or federal choice of law rules, Ecuador being a “state” with a significant connection to the relevant contracts. There is also, however, a line of Second Circuit authority supporting the application of federal common law to questions such as the one at issue here, particularly in cases arising under the New York Convention. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 845 (2d Cir.1987), held, with respect to a motion under the FAA and New York Convention to stay an action pending arbitration, that whether a party was “bound by the arbitration clause of ... sales confirmation forms [including some it did not sign] is determined under federal law, which comprises generally accepted principles of contract law.” In Thomson-CSF, S.A. v. American Arbitration Association, 64 F.3d 773, 776 (2d Cir.1995), the Second Circuit stated that “[the] theories under which nonsignatories may be bound to the arbitration agreements of others'..: arise out of common law principles of contract and agency law.” Smith/Enron Cogeneration Ltd. P’ship v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 96-98 (2d Cir.1999), followed Thom-sorir-CSF’ s common law principles in a New York Convention case after holding that “[w]hen we exercise jurisdiction under Chapter Two of the FAA, we have compelling reasons to apply federal law, which is already well-developed, to the question of whether an agreement to arbitrate is enforceable.” 198 F.3d at 96. “Where there is little connection to the forum and the Agreements between the parties state an intention to be governed by the FAA,” Smith/Enron explains, “proceeding otherwise would introduce a degree of parochialism and uncertainty into international arbitration that would subvert the goal of simplifying and unifying international arbitration law.” Id. Quite recently, citing Smith/Enron, the Second Circuit reaffirmed that “[i]t is American federal arbitration law that controls” the question of whether an American nonsignatory can be bound to arbitrate in a New York Convention case, because “[t]o hold otherwise would defeat the ordinary and customary expectations of experienced business persons.” Sarhank Group v. Oracle Corp., 404 F.3d 657, 661-662 (2d Cir.2005). Strictly speaking, this is probably not a case covered by the New York Convention. The United States and Ecuador are both members of the Organization of American States and parties to the Inter-American Convention, see 9 U.S.C.A. § 301 note, so that “a majority of the parties are citizens of a State or States that have ratified or acceded to the Inter-American Convention and are member States of the Organization of American States,” 9 U.S.C.A. § 305, and thus that Convention rather than the New York Convention appears to apply. This does not alter the choice of law analysis, however. Given Congress’s expectation “that courts in the United States would achieve a general uniformity of results under the two conventions,” Productos Mercantiles E Industriales, S.A. v. Faberge USA 23 F.3d 41, 45 (2d Cir.1994) (quoting H.R.Rep. No. 501, 101st Cong., 2d Sess. 4 (1990), reprinted in 1990 U.S.C.C.A.N. 675, 678), and given that the policy concerns motivating the rule in Smith/Enron and Sarhank apply to Inter-American Convention cases as much as to New York Convention cases, Smith/Enron and Sarhank strongly suggest that, federal common law should govern arbitrability issues in an Inter-American Convention case as well. If the .rule of Smith/Enron and Sarhank were settled with regard to Convention cases, it would be appropriate to follow it here even though this action comes to the Court under both Convention jurisdiction and diversity jurisdiction, see supra Part II.A.1. “[T]he goal of simplifying and unifying international arbitration law,” Smith/Enron, 198 F.3d at 96, would not be any less relevant simply because the parties could also get into court another way. There appears at first glance to be tension between different Second Circuit authorities regarding whether federal common law governs the validity of a party’s purported agreemént to arbitrate where, as here, the case arises under one of the Conventions and the contract manifesting the purported agreement contains a choice-of-law clause: Sarhank held that such a choice-of-law clause was to be ignored in favor of federal common law, while Motorola Credit Corp. v. Uzan, 388 F.3d 39 (2d Cir.2004), held that the choice-of-law clause- governed. Sarhank and Motorola can, however, be reconciled. The appellee in Sarhank, proceeding under the district court’s 9 U.S.C. § 203 jurisdiction pursuant to the New York Convention, had successfully petitioned for confirmation of “a commercial arbitration award rendered jointly and severally against Oracle [Corporation] and its wholly owned subsidiary Oracle . Systems, Inc. (‘Systems’),” despite the fact that Oracle was not a signatory to either the agreement under which arbitration had been demanded or any other agreement to arbitrate with the petitioner-appellee. 404 F.3d at 658. The arbitration agreement at issue, “a bilateral executory contract” between petitioner-appellee Sarhank and Systems, id., contained a choice-of-law law clause stating that “[t]his agreement shall be construed and governed in 'all respects in accordánce with the laws of the Republic of Egypt'and the parties hereto hereby agree to submit to the jurisdiction of the Courts of Cairo.” 404 F.3d at 661. The arbitrators had concluded, based on Egyptian contract law, that Oracle was bound by its subsidiary’s signature,' id. at 662. Notwithstanding the Egyptian choice-of-law clause, the Court of Appeals held that “[i]t is American federal' arbitration law that controls” and that “[a]n American nonsignatory cannot be bound to arbitrate in the absence of a full showing of facts supporting an articulable theory based on American contract law or American agency law.” Id. The case was remanded to the district court “to find as a fact whether Oracle agreed to arbitrate, by its actions or inaction ... or on any other basis recognized by American contract law or the law of agency.” Id. at 662-63. The defendants in Motorola “sought to compel arbitration under 9 U.S.C. § 206 pursuant to agreements that had been signed by plaintiffs and by certain companies controlled by the defendants’ family, but to which the defendants themselves were not parties. 388 F.3d at 42-43, 49. The agreements in question contained Swiss choice-of-law clauses, and the Court of Appeals held that “if defendants wish to invoke the arbitration clauses in the agreements at issue, they must also accept the ... choice-of-law clauses that govern those agreements.” Concluding “that under Swiss law.... defendants, as nonsignato-ries, have no right to invoke those agreements,” the Court of Appeals “affirm[ed] the District Court’s denial of defendants’ motion to compel arbitration.” 388 F.3d at 53. The most reasonable way to reconcile Motorola and Sarhank is to conclude that a choice-of-law clause will govern where a nonsignatory to a particular arbitration agreement seeks to enforce that agreement against a signatory, but not where a signatory seeks to enforce the agreement against a nonsignatory. In the former case, exemplified by Motorola, the party seeking arbitration must implicitly accept that the contract under which arbitration is sought is valid and binding on it, and the party opposing arbitration has signed the contract, so both parties can reasonably be bound by the choice-of-law clause. In the latter case, exemplified by Sar-hank, the nonsignatory party opposing arbitration is in essence contending that it is not subject to the contract at all; thus, applying the choice-of-law clause from that contract to determine the issue would beg the question in a manner potentially unfair to the nonsignatory. Cf. Thomson-CSF, 64 F.3d at 779 (stating that while “the circuits have been willing to estop a signatory from avoiding arbitration with a nonsignatory when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed,” this doe's not logically imply that a signatory can compel a nonsignato-ry in similar fashion, inasmuch as holdings that “the parties were estopped from avoiding arbitration because they had entered into written arbitration agreements, albeit with the affiliates of those parties asserting the arbitration and not the parties themselves” cannot be extended to “estop[] [a nonsignatory] from denying the existence' of an arbitration clause to which it is a signatory because no such clause exists.”) Here, TexPet, signatory to the 1965 JOA, seeks arbitration, and nonsignatory Petroecuador opposes arbitration. Thus, Sarhank rather than Motorola controls, and the federal common law of arbitration agreements applies. One might argue that the holding of Sarhank is inapplicable to this case because that holding dealt with the circumstances under which “an American nonsig-natory [could] be bound to arbitrate,” 404 F.2d at 662, and this' case deals with whether a foreign nonsignatory can be bound to arbitrate. Motorola, in contrast, dealt with whether a foreign signatory could be bound to arbitrate. If the difference between "an American party and a foreign party were more significant than the difference between a signatory and a nonsignatory, therefore, the Motorola choice-of-law rule would be applicable here. A reconciliation of Sarhank and Motorola that would have the choice of governing law in a Convention ease depend on the nationality of the party sought to be forced into arbitration, however, is not consistent with the Smith/Enron principle that “parochialism” in international arbitration should be avoided in furtherance of “the goal of simplifying and unifying international arbitration law,” 198 F.3d at 96. Nothing in either of the Conventions suggests that the validity of an alleged arbitration-agreement involving citizens of nations that are signatories to the convention should depend on which signatory nation’s citizens resist arbitration. The Second Circuit has attached grea