The parties therefore generally carry both the burden of raising the issue that foreign law may apply in an action, and the burden of adequately proving foreign law to enable the court to apply it in a particular case. See Whirlpool Fin. Corp. v. Sevaux, 96 F.3d 216, 221 (7th Cir. 1996)(holding that party waived conflicts of law issue because it failed to fulfill its obligation under Rule 44.1 "to provide the district court with "reasonable notice" of his intention to raise an issue of foreign law."); Restatement (Second) Conflict of Laws § 136 cmt. f (1971) ("[T]he party who claims that the foreign law is different from the local law of the forum has the burden of establishing the content of the foreign law."). Where parties fail to satisfy either burden the court will ordinarily apply the forum's law. See Walter v. Netherlands Mead N.V., 514 F.2d 1130, 1137 n.14 (3d Cir. 1975); see also Banco de Credito Indus. v. Tesoreria General, 990 F.2d 827, 837 (5th Cir. 1993)("When the parties have failed to conclusively establish foreign law, a court is entitled to look to its own forum's law in order to fill any gaps."); Carey, 864 F.2d at 205 (applying forum's law where parties fail to raise issue of foreign law's applicability); Commercial Ins. Co. of Newark, N.J. v. Pacific-Peru Constr. Corp., 558 F.2d 948, 952 (9th Cir. 1977)(applying forum law where parties failed to raise issue of foreign law's applicability); Restatement (Second) Conflict of Laws § 136 cmt. h (1971) ("[W]here either no information, or else insufficient information, has been obtained about the foreign law, the forum will usually decide the case in accordance with its own law, except when to do so would not meet the needs of the case or would not be in the interests of Justice.").

Lubritene claims that it cannot be bound by Chemrite's agreement to arbitrate because, as a matter of contract law, the written consent provision prevents it from becoming Chemrite's assignee. Lubritene, however, has not raised the issue of whether South African contract law applies to its claim, nor has it provided any evidence to prove the substance of that law.2 We therefore will apply the law of the forum.

This case was brought in New Jersey. Thus, we now turn to consider that state's contract law. The New Jersey Supreme Court has not yet addressed the effect of contractual provisions limiting or prohibiting assignments. Nevertheless, we are not without guidance because the Superior Court's Appellate Division recently addressed this issue in Garden State Buildings L.P. v. First Fidelity Bank, N.A., 702 A.2d 1315 (N.J. Super. Ct. App. Div. 1997). There, a partnership had entered a loan agreement with Midatlantic Bank for the construction of a new hotel. The parties subsequently entered into a modification agreement to extend the loan's maturity date, which provided that: "No party hereto shall assign this Letter Agreement (or assign any right or delegate any obligation contained herein) without the prior written consent of the other party hereto and any such assignment shall be void." Id. at 1318. Midatlantic subsequently assigned the loan to Starwood without obtaining the partnership's prior written consent. The partnership acknowledged Starwood's rights under the loan agreement by making payments to, and eventually entering a settlement agreement with, Starwood. Nonetheless, the partnership filed suit against Midatlantic for damages arising from its breach of the modification agreement's assignment clause. It argued that it was not required to void the assignment, but could recognize its validity while still preserving its right to sue Midatlantic for breach of its covenant not to assign without the partnership's written consent.

To resolve this claim the Appellate Division looked to § 322 of the Restatement (Second) of Contracts, which provides in relevant part: "

(2) A contract term prohibiting assignment of rights under the contract, unless a different intention is manifested . . . . "(b) gives the obligor a right to damages for breach of the terms forbidding assignment but does not render the assignment ineffective . . ."

Restatement (Second) of Contracts § 322 (1981) (emphasis added). The Court, distinguished between an assignment provision's effect upon a party's "power" to assign, as opposed to its "right" to assign. A party's "power" to assign is only limited where the parties clearly manifest a different intention. According to the Court:

"`[t]o reveal the intent necessary to preclude the power to assign, or cause an assignment violative of contractual provisions to be wholly void, such clause must contain express provisions that any assignment shall be void or invalid if not made in a certain specified way.' Otherwise, the assignment is effective, and the obligor has the right to damages."

Garden State, 702 A.2d at 1321 (quoting University Mews Assoc's v. Jeanmarie, 471 N.Y.S.2d 457, 461 (N.Y. Sup. Ct. 1984)). The Court concluded that the parties had sufficiently manifested their intent to limit Midatlantic's power to assign the loan because the anti-assignment clause clearly provided that assignments without the other party's written consent "shall be void." Id. at 1322.

In adopting § 322, New Jersey joins numerous other jurisdictions that follow the general rule that contractual provisions limiting or prohibiting assignments operate only to limit a parties' right to assign the contract, but not their power to do so, unless the parties' manifest an intent to the contrary with specificity. See Cedar Point Apartments, Ltd. v. Cedar Point Inv. Corp., 693 F.2d 748, 754 & n.4 (8th Cir. 1982); Pro Cardiago Pronto Socorro Cardiological, S.A. v. Trussell, 863 F. Supp. 135, 137 (S.D.N.Y. 1994); Lomas Mortgage U.S.A., Inc. v. W.E. O'Neil Constr. Co., 812 F. Supp. 841, 843-44 (N.D. Ill. 1993); Allhusen v. Caristo Const. Corp., 103 N.E.2d 891, 893 (N.Y. 1952); Macklowe v. 42nd St. Dev. Corp., 566 N.Y.S.2d 606, 606-07 (N.Y. Sup. Ct. App. Div. 1991); Sullivan v. International Fidelity Ins. Co., 465 N.Y.S.2d 235, 237 (N.Y. Sup. Ct. App. Div. 1983); University Mews Assoc's v. Jeanmarie, 471 N.Y.S.2d 457, 461 (N.Y. Sup. Ct. 1984). To meet this standard the assignment provision must generally state that non-conforming assignments (i) shall be "void" or "invalid," or (ii) that the assignee shall acquire no rights or the non-assigning party shall not recognize any such assignment. See Garden State, 702 A.2d at 1321 ("clause must contain express provisions that any assignment shall be void or invalid if not made in a certain specified way"); Cedar Point, 693 F.2d at 754 n.4 (same); Allhusen, 103 N.E.2d at 893; Sullivan, 465 N.Y.S.2d at 238; University Mews, 471 N.Y.S.2d at 461. In the absence of such language, the provision limiting or prohibiting assignments will be interpreted merely as a covenant not to assign, or to follow specific procedures--typically obtaining the non-assigning party's prior written consent--before assigning. Breach of such a covenant may render the assigning party liable in damages to the non-assigning party. The assignment, however, remains valid and enforceable against both the assignor and the assignee. See Garden State, 702 A.2d at 1321; Cedar Point, 693 F.2d at 754 n.4; Pro Cadiago, 863 F. Supp. at 137; Lomas, 812 F. Supp. at 844; Allhusen, 103 N.E.2d at 892; Sullivan, 465 N.Y.S.2d at 237.

The Trade Agreements in this case contain the following assignment provisions: (i) the Distributor Sales Agreement § 7.06 provides that the "Agreement and the obligations and rights under this Agreement will not be assignable by [Chemrite] without express prior written consent of Bel-Ray, which may be withheld at the sole discretion of Bel-Ray"; (ii) the Blending and Manufacturing License Agreement § 7.05 provides that the "Agreement and the obligations and rights hereunder will not be assignable by [Chemrite] without the express prior written consent of BEL-RAY"; and (iii) the License Agreement to Trade Name § 6.06 provides that the "Agreement, and the obligations and rights under this agreement will not be assignable without the express written consent of all Parties to this Agreement." (A39, A61, A83). None contain terms specifically stating that an assignment without Bel-Ray's written consent would be void or invalid. Several courts have considered virtually identical clauses and concluded that they did not contain the necessary express language to limit the assigning party's power to assign. See Lomas, 812 F. Supp. at 844; Macklowe, 566 N.Y.S.2d at 606-07; Sullivan, 465 N.Y.S.2d at 236-38.

The Trade Agreements' assignment clauses do not contain the requisite clear language to limit Chemrite's "power" to assign the Trade Agreements. Chemrite's assignment to Lubritene is therefore enforceable, and Lubritene is bound to arbitrate claims "relating to" the Trade Agreements pursuant to their arbitration clauses. We therefore agree with the District Court that Bel-Ray was entitled to an order compelling Lubritene to arbitrate.

We now turn to consider whether the District Court properly compelled the Individual Appellants to arbitrate. The Individual Appellants contend that the District Court erred because it lacked personal jurisdiction over them, and because they did not individually agree to arbitrate claims with Bel-Ray. We examine these claims in turn.

The Individual Appellants first argue that the District Court lacked personal jurisdiction over them. Bel-Ray rejoins that appellants waived personal jurisdiction by seeking summary judgment on their counterclaim for affirmative injunctive relief against Bel-Ray. We agree.

"Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived." Insurance Corp. of Ir., Ltd., et al. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982). Moreover, the "actions of the defendant may amount to a legal submission to the jurisdiction of the court, whether voluntary or not." Id. at 704-705. In particular, where a party seeks affirmative relief from a court, it normally submits itself to the jurisdiction of the court with respect to the adjudication of claims arising from the same subject matter. Adam v. Saenger, 303 U.S. 59 (1938).

Because there "exists a strong policy to conserve judicial time and resources," we have held that "preliminary matters such as . . . personal jurisdiction . . . should be raised and disposed of before the court considers the merits or quasi-merits of a controversy." Wyrough & Loser, Inc. v. Pelmore Lab., Inc., 376 F.2d 543, 547 (3d Cir. 1967). Accordingly, in Wyrough we held that a defendant who participates in the adjudication of the plaintiff's application for a preliminary injunction without securing a determination of his challenge to the court's personal jurisdiction over him submits himself to the jurisdiction of the court unless it is not reasonably feasible tofirst secure that determination. See id. This is true even where the defendant raises his personal jurisdiction defense at the earliest point required by the Federal Rules. See id.

While the Individual Appellants timely raised their personal jurisdiction defense in their answer as required by the Federal Rules, they did far more than resist an application for a preliminary injunction. They asked the District Court for affirmative relief before securing a determination on their personal jurisdiction defenses. On May 21, 1998, three months after they had entered their appearances before the District Court, the Individual Appellants filed motions for summary judgment on their counterclaim asking the Court to enjoin Bel-Ray from seeking arbitration. They thereafter proceeded to litigate those motions before securing a personal jurisdiction determination. Their affidavits supporting their personal jurisdiction defenses were not filed until a little over a month after their motion for summary judgment was denied. Because the record contains nothing suggesting that it would be unfair to conclude that the Individual Appellants thereby submitted themselves to the District Court's jurisdiction, we so hold.

Arbitration is strictly a matter of contract. If a party has not agreed to arbitrate, the courts have no authority to mandate that he do so. United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). The Individual Appellants claim that the District Court violated this fundamental principle because they have not signed an agreement consenting to submit disputes between themselves and Bel-Ray to arbitration. When asked to enforce an arbitration agreement against a non-signatory, we ask whether he or she is bound by that agreement under traditional principles of contract and agency law. Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503 (3d Cir. 1994); Pritzker v. Merrill, Lynch, Pierce, Fenner & Smith, 7 F.3d 1110, 1121 (3d Cir. 1993).

Bel-Ray insists that the Individual Appellants are bound by the arbitration clauses in the Trade Agreements"based on their status as [Lubritene's] agents," citing our decision in Pritzker. Appellants' Br. at 16. Bel-Ray does not explicate, however, what principle of agency law enabled Lubritene to contract away the Individual Appellants' right to litigate their personal liability on claims brought against them. Our reading of Pritzker does not suggest such a principle, and our research has uncovered none.

In Pritzker, the trustees of a pension plan sued the brokerage firm which traded on behalf of the plan, the broker in the firm that serviced the plan's account, and a sister corporation of the brokerage firm that provided the plan with investment advice. The arbitration clause that the trustees sought to enforce was set forth in the Cash Management Agreement between the trustees and the brokerage firm; neither the broker nor the sister corporation signed the agreement. After a dispute arose regarding investment decisions and the trustees filed suit, the defendants sought to compel arbitration. The trustees resisted arbitration and argued that they could not be compelled to arbitrate against the broker and the sister corporation because they had not entered into an arbitration agreement with those parties. We rejected this argument.

In Pritzker, the issue was whether a signatory to an arbitration agreement could be compelled to arbitrate claims it had against the agents of the other party to the agreement. As we made clear at the outset of the opinion, the result turned on a construction of the arbitration clause to which the trustees had agreed -- i.e., whether it was broad enough in scope to encompass claims against agents of the brokerage firm arising out of the relationship between the brokerage firm and the trustees. We held that by agreeing in the context of the customer's agreement to arbitrate "all controversies which may arise between us," the trustees had committed themselves to arbitrate claims against the firm and its agents arising out of the brokerage relationship. We noted that since the brokerage could act only through agents and employees, "an arbitration agreement would be of little value if it did not extend to [them]." Id. at 1122 (quoting Troll v. Paciolla, 748 F. Supp. 305, 309 (E.D. Pa. 1990). Accordingly, "[i]n keeping with the federal policy favoring arbitration," we "extend[ed] the scope of the arbitration clauses to agents of the party who signed the agreements." Id. at 1122.

The issue before us, however, is not the construction of the arbitration clauses. The relevant issue here is whether an employee or agent who did not agree to arbitrate can be compelled to arbitrate his personal liability on the basis of a commitment made by the corporation he serves.

The only other cases relied upon by Bel-Ray are our decision in Isidor Paiewonsky Assoc., Inc. v. Sharp Properties Inc., 998 F.3d 145 (3d Cir. 1993), and the decision of the Court of Appeals for the Ninth Circuit in Letizia v. Prudential Bache Securities, 802 F.2d 1185 (9th Cir. 1986). Like Pritzker, Letizia was a suit by a client against a brokerage firm and the two firm employees who handled the account. As in Pritzker, the employees sought to compel the client to arbitrate his claims against them and the result turned on construction of the arbitration clause in the agreement between the client and the firm. The court concluded that "all of the individual defendants' allegedly wrongful acts related to their handling of[the client's] securities account" and that the firm had "clearly indicated its intentions [in the agreement] to protect its employees" from the expense of litigation arising from their work activities. Id. at 1188. Accordingly, the client's claims against the employees were held to be within the scope of the client's commitment to arbitrate, and the employees were held to be entitled to enforce that commitment.

In the Sharp case, a landlord and "head tenant" of a shopping center had entered a master lease containing an arbitration clause. The issue we were required to decide was whether a subtenant, who had not signed the master lease, was bound by an award resulting from arbitration between the landlord and the "head tenant." The award authorized the landlord to regain possession of the portion of the leasehold occupied by the subtenant. We held that the subtenant was bound, despite the fact that it was not a party to the arbitration agreement. We first looked to "basic principles of landlord-tenant law":

"As a general matter, it is well-established that a subtenant's interest in real property cannot exceed that of the head tenant because the subtenant's interest in the real property is strictly derivative of that of the head tenant. Normally, then, if a head tenant loses its rights to continued possession of the property in question, so does the subtenant . . . "

Thus, to the extent that common law principles of the rights of subtenants inform our analysis here, [the subtenant] cannot complain when its rights to continued possession of the Bolero Building ended upon an adverse adjudication of the rights of its sublessor, [the head tenant]."

Sharp, 998 F.2d at 154.

We then turned to the FAA and determined that none of its provisions required a different result. Accordingly, we enforced the award against the subtenant. While the general approach we followed in Sharp is equally applicable here, the ruling there provides little help in resolving this case.

We thus conclude that Bel-Ray has tendered no authorities supporting its position. Nor has our own research revealed supporting authority. On the contrary, the authority that does exist suggests to us that the District Court erred in compelling the Individual Appellees to arbitrate.

Generally, of course, an agent of a disclosed principal, even one who negotiates and signs a contract for her principal, does not become a party to the contract. Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503 (3d Cir. 1994); Restatement (Second) of Agency § 320 (1958). Moreover, under traditional agency principles, the only other way we understand that an agent can be bound by the terms of a contract is if she is made a party to the contract by her principal acting on her behalf with actual, implied, or apparent authority. The record in this case will not support a decision for Bel-Ray on any of these theories.

Thomson-CSF, S.A. v. American Arbitration Ass'n, 64 F.3d 773 (2d Cir. 1995), catalogues the various theories recognized by the Court of Appeals for the Second Circuit for binding non-signatories to an arbitration clause. After noting that each theory is based on "common law principles of contract and agency law," the court set forth the following list:

"1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel."

Thomson, 64 F.3d at 776.

In Thomson, the District Court compelled a non-signatory parent corporation to arbitrate based on an arbitration agreement between its subsidiary and one of the subsidiary's suppliers. The Court of Appeals reversed. After analyzing the record before it under each of the enumerated theories, the Court held that the District Court lacked authority under common law contract and agency principles to compel the parent to arbitrate even though the claim against it arose out of the relationship between the subsidiary and the supplier.

Having similarly compared our record with the Thomson court's explanation of each of the five enumerated theories, we have also concluded that each is inapposite here. As in Thomson, the record will not support a piercing of the corporate veil and, without disregarding the entity of Lubritene, it is not possible to find the direct benefit required by the estoppel cases.

Here, as in Kaplan, traditional principles of contract and agency law do not support the Conclusion that the parties resisting arbitration are bound by an arbitration agreement they did not sign. Accordingly, we hold that the District Court erred in compelling the Individual Appellants to arbitrate Bel-Ray's claims against them. Bel-Ray may, if it so chooses, apply to the District Court for a stay of the proceeding on those claims pending its arbitration with Lubritene.

The order of the District Court compelling arbitration will be reversed and the case will be remanded to it with instructions to enter an order compelling only Lubritene to arbitrate.