Case Law Library

On January 1, 2015, NYIAC began collecting and cataloguing international arbitration decisions issued by New York courts. NYIAC restarted this project on June 1, 2019. Now these decisions – and key identifying information such as the decision date, the stage of the case, and the main issues treated by the court – are available on the NYIAC website. Importantly, you will also see a free, public link to the decision itself: there is no need to log into PACER or other subscription-based service. This access is made possible by Fastcase, a modern legal research tool. The Library will be updated as cases are issued.

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Case Law Team:
Pedro Arcoverde, ICC-SICANA
Rafael Carlos del Rosal Carmona, AAA-ICDR
Shashi Dholandas, Bailey Duquette
Santiago Gatica, Freshfields Bruckhaus Deringer LLP
Jadranka Jakovcic, Curtis, Mallet-Prevost, Colt & Mosle LLP
Camille Ng, ICC-SICANA
Daniela Paez, Herbert Smith Freehills LLP
Alexandre Sauveplane, Bailey Duquette
Becca Shieh, Sherman & Sterling LLP

Editorial Team:
Mark D. Stadnyk, Squire Patton Boggs
Rekha Rangachari, NYIAC
Gretta Walters, Chaffetz Lindsey LLP

The summaries posted herein do not reflect the views of any author's firm or institution.

Case Number Decision Date Case Name Court Judge(s) Arbitration Rules Industry Stage of Arbitration
615055-19 31 Dec 2019 Chain Sales Mktg. v. Roach NY Supreme Elizabeth H. Emerson AAA Securities Enjoin arbitration

The court ruled that, after the decease of claimant in the arbitration, the executor of the claimant’s estate may proceed with the arbitration as claimant. The court also explained that determining if a claim is barred by a statute of limitations is a threshold issue for courts to decide, while whether a demand for arbitration was properly served is for an arbitrator to decide.

19-670-cv 19 Dec 2019 First Capital Real Estate Invs. v. SDDCO Brokerage Advisors, LLC 2d Circ. Cabranes, Droney, Reis Unknown Real estate Enforcement

The court rejected an appeal based on the alleged improper selection of a member of the tribunal because the district court had already determined that appellant waived its objection to the arbitrator by failing to timely seek the arbitrator’s disqualification.  Therefore, the court affirmed the decision confirming the award.

19-CV-06711 19 Dec 2019 Morse v. Levine SDNY GHW AAA Financial services Compel arbitration

The court found that a choice of New York law in the agreement did not lead to the application of New York arbitration law over the Federal Arbitration Act or the applicable arbitration rules regarding the consequences for lack of payment of the arbitration fees. The court also ruled that service by email to the address on respondent’s website was appropriate, given that 1) petitioner attempted to serve respondent at his registered business address, 2) had no personal residence address for respondent, and 3) were refused permission to serve process through respondent’s counsel.

19-CV-05768 16 Dec 2019 Galilea, LLC v. AGCS Marine Ins. Co. SDNY Valerie Caproni AAA Insurance Enforcement

The court found no evident partiality in the fact that two of the arbitrators were appointed to cases involving the other party. It highlighted that the appointments arose from the use of a list through the strike and rank method and that no objective evidence of corruption or partiality was provided. The court also ruled that the arbitrators did not exceed their authority by having the case heard in New York and administered by the ICDR, as the arbitration clause provided for arbitration in New York administered by the AAA, and the ICDR is a division of the AAA.

19-cv-9942 13 Dec 2019 Trs. for the Mason Tenders Dist. Council Welfare Fund v. Inniss Constr., Inc. SDNY JSR Unknown Financial services Enforcement

The court granted a motion to confirm an award in a case where respondent failed to appear, ruling that although default judgments are normally not appropriate for confirmation proceedings, they are appropriate for cases in which respondent failed to appear in the arbitration or the enforcement proceedings because in those circumstances there is no practical differences between a motion for default judgment or for summary judgment.

652177/19 12 Dec 2019 Matter of Castedo v Permanent Mission of Thailand to the United Nations Appellate Division Gesmer, Hon. Troy K. Webber, Manzanet-Daniels, Richter Unknown Construction Enjoin arbitration

The court granted a permanent stay of a parallel arbitration. It found that the petitioner architect did not receive any benefit from a separate construction agreement containing an arbitration clause. The court also found that the contract between petitioner and the other party specifically excluded arbitration, and the arbitration could not be incorporated by reference.

19-CV-735S 12 Dec 2019 Seneca Nation of Indians v. State of New York WDNY William M. Skretny AAA Casino & Gaming Enforcement

The court ruled that a restricted securities account with deposits in excess of the confirmed award qualifies as “other security” and therefore suffices to stay enforcement of the award pending appeal. The court considered in its decision the fact that the Nation had agreed not to make any withdrawals, and that the bank would be unlikely to interfere with the collection of the award amounts in light of the purpose of the account. The court also dismissed arguments about whether interest would be covered, as the existence and exact amount of interest was not confirmed.

18 Civ. 3124 (DAB) 6 Dec 2019 Napoleone v. S2K Financial, LLC SDNY DAB FINRA Employment Enforcement

The court confirmed an award despite allegations that the case should have been heard by three arbitrators. FINRA decided that one arbitrator would hear the dispute, although the arbitration clause provided for three arbitrators. Claimant in the arbitration requested three arbitrators, but respondent requested to proceed with one. The sole arbitrator ruled on the merits in favor of claimant, and respondent attempted to vacate the award alleging the case should have been decided by three arbitrators. The court denied vacatur because respondent was judicially estopped after it had argued for one arbitrator in the arbitration.

19-CV-2645 (AJN) (KHP) 6 Dec 2019 City of Almaty, Kazakhstan and BTA Bank JSC v Felix Sater, et al. SDNY KHP AAA Investigative & litigation assistance Compel arbitration

The court denied a request by the defendant to stay court proceedings pending a potentially related arbitration. The defendant in the court action was the owner of a company that had entered into an agreement with plaintiffs in the court proceedings, and that contained a broad arbitration clause. The company requested in the arbitration, among other things, a declaration that the release of liability in the agreement covered the owner, even though he was not a party to the agreement and had hid his involvement with the company. The court concluded that none of the theories for non-signatories to invoke an arbitration agreement applied and denied the request.

19-CV-735S 8 Nov 2019 Seneca Nation of Indians v. State of New York WDNY William M. Skretny AAA Casino & Gaming Award confirmation

The District Court denied the Nation’s petition to vacate the final award and granted the State’s cross-petition to confirm the awards (partial and final). In so doing, the Court rejected the Nation’s arguments that the majority of the arbitral tribunal “manifestly disregarded” governing law (namely, the IGRA). In particular, the Court held that there is no evidence that the panel simply ignored the IGRA provisions, assuming that said provisions constitute governing law. Rather, “[t]he majority considered the Nation’s arguments and rejected them”.

18-624 11 Oct 2019 IBEW, Local Union No. 3 v. Charter Communications., Inc. 2d Circ. Hon. Dennis Jacobs, Hon. Peter W. Hall, Hon. Robert D. Sack Unknown Labor Compel arbitration

The Court affirmed a grant of summary judgment and an order that the parties proceed to arbitration. The Court reiterated its rejection of the notion that the parties would only be bound by the arbitration provision of an unsigned successor collective bargaining agreement if there was an agreement on all material terms.

18-MC-384 10 Oct 2019 Crispin Porter & Bogusky SDNY Vernon S. Broderick Unknown Employment Compel arbitration

Defendant challenged an arbitration clause contained in an employment contract asserting that a limitation to the employer’s liability, contained in a separate clause of the agreement made the arbitration clause unconscionable. Though the clause containing the liability limitation referenced the arbitrator, the Court recognized the severability of the arbitration agreement. The assertion of unconscionability was deemed appropriate for consideration by the arbitrator as a challenge to the validity of the entire employment agreement and, therefore, arbitration was compelled.

2017-03467 9 Oct 2019 In re V.S. Care Acupuncture, P.C. v. Country-Wide Insurance, Co. New York Supreme Court, Appellate Division Hon. Linda Christopher, Hon. Ruth C. Balkin, Hon. Sheri S. Roman, Hon. Valerie Braithwaite Nelson Unknown Insurance Enforcement

The Court reversed a decision vacating a master arbitrator’s award and instead confirmed such award. The Court relied on a failure of the plaintiff in the prior case to demonstrate any grounds for vacating the master arbitrator’s award and noted that a court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75.

2016-07096; 2016-08032 9 Oct 2019 Kotlyar v Khlebopros New York Supreme Court, Appellate Division Hon. Francesca E. Connolly, Hon. John M. Leventhal, Hon. Ruth C. Balkin, Hon. Sheri S. Roman Unknown Shareholder dispute Enforcement

The Court confirmed affirmed a judgment confirming an arbitration award. The Court stressed that judicial review of arbitration awards is extremely limited, that the arbitration award was neither irrational nor violative of public policy, and that the arbitration award was final and definite within the meaning of CPLR 7511(b)(1)(iii).

2017-03465 9 Oct 2019 Matter of Acuhealth Acupuncture, P.C. v Country-Wide Insurance, Co. New York Supreme Court, Appellate Division Hon. Linda Christopher, Hon. Ruth C. Balkin, Hon. Sheri S. Roman, Hon. Valerie Braithwaite Nelson Unknown Insurance Enforcement

The Court affirmed a judgment that vacated a master arbitrator’s award and confirmed the original arbitrator’s award. The Court stated that an arbitrator acts within his or her discretionary authority by refusing to entertain late submissions, which is what the original arbitrator in this case did.

2017-03466 9 Oct 2019 Matter of Acuhealth Acupuncture, P.C. v Country-Wide Insurance, Co. New York Supreme Court, Appellate Division Hon. Linda Christopher, Hon. Ruth C. Balkin, Hon. Sheri S. Roman, Hon. Valerie Braithwaite Nelson Unknown Insurance Enforcement

The Court reversed a judgment of the lower court and confirmed the master arbitrator’s award. The Court noted that a court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR 75, none of which applied here, and also that the master arbitrator’s review power is broader than that of the court’s because it includes the power to review for errors in law.

9580/03473 9 Oct 2019 Matter of Bay Needle Care Acupuncture v Country-Wide Ins. Co. Appellate Division Hon. Linda Christopher, Hon. Ruth C. Balkin, Hon. Sheri S. Roman, Hon. Valerie Braithwaite Nelson Unknown Insurance Enforcement/Attachment

The Court affirmed a judgment that vacated a master arbitrator’s award and confirmed the original arbitrator’s award. The Court agreed with the supreme court that the master arbitrator exceeded his power in vacating the original arbitrator’s award by, in effect, weighing the evidence and coming to a different conclusion than the original arbitrator as to what the evidence proved.

2017-03468, (Index No. 3129/16) 9 Oct 2019 Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co. New York Supreme Court, Appellate Division Hon. Linda Christopher, Hon. Ruth C. Balkin, Hon. Sheri S. Roman, Hon. Valerie Braithwaite Nelson Unknown Insurance Enforcement/Attachment

The Court affirmed a judgment that vacated the master arbitrator’s award and confirmed the original arbitrator’s award. The Court noted that a master arbitrator may not review the facts by weighing the evidence, assessing the credibility of witnesses, or making independent findings of fact, although the master arbitrator may review the facts to determine whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator. The Court found that, here, there was no rational basis for the determination of the master arbitrator that the original arbitrator committed an error of law in rejecting the fraudulent incorporation defense.

176 A.D.3d 459 8 Oct 2019 Matter of Elco Admin. Servs. v Bones-Rojos Appellate Division Friedman, Hon. Troy K. Webber, Mazzarelli, Richter, Sweeny Unknown Insurance Enjoin arbitration

The Court confirmed a judgment that modified, on the law, a grant for a permanent stay of arbitration to a temporary stay pending a hearing on personal jurisdiction. The Court found that a request to arbitrate an uninsured motorist’s claim may be stayed to establish the threshold issue of the insurance status of the alleged offending vehicle on the date of the accident.

939 F.3d 520 7 Oct 2019 In re Application of Antonio del Valle Ruiz 2d Circ. Droney, Hon. Peter W. Hall, Parker Unknown Joint venture Discovery

The Second Circuit held that 28 U.S.C. § 1782(a) — under which a U.S. federal district court “in the district in which a person resides or is found” may order discovery “for use in a proceeding in a foreign or international tribunal” upon application by “any interested person” — allows for a district court to exercise its discretion as to whether to authorize discovery located outside the United States.

18-cv-6658 (JSR); 18-CV-12018 (JSR) - CNG 7 Oct 2019 Cyganowski v. Beechwood Re Ltd. (In re Platinum-Beechwood Litigation) SDNY Jed S. Rakoff Unknown Insurance Compel arbitration

With respect to the defendants’ motion to dismiss and compel arbitration, the Court referred to a previous memorandum order and stated that it would hold off decision on this motion until the arbitral panel resolves the dispute on whether certain of the entities represented by the plaintiff, as equity receiver, were precluded from bringing their motion to strike the defendants’ motion to dismiss and compel arbitration. In matter underlying the memorandum order, the court considered a previous and identical motion from the petitioners to compel arbitration of  their breach of contract claim and contribution and indemnity claims, while certain of the defendants had argued that the petitioner could not make such a motion until posting additional security, as statutorily mandated. In the memorandum order, the court denied the motion to quash the motion to compel arbitration on the grounds that the arbitral tribunal should first decide whether the petitioners were precluded from bringing their motion.

655954/2018 4 Oct 2019 Broumand v. Abbot NY Supreme Jennifer G. Schecter Unknown Shareholder dispute Compel arbitration

In a double derivative action, defendant sought to compel arbitration based on an arbitration clause contained in an operating agreement. Plaintiff opposed the motion to compel, arguing the defendant’s right to arbitration was waived by its successful defense against earlier motion to enjoin its sale to a Canadian company. The court found that defending injunctive motions, which were expressly carved out of the arbitration agreement, did not qualify as one of the factors supporting waiver under the FAA. It was further noted that defendants had consistently expressed the position that the matter should be submitted to arbitration. The court also held that questions of timeliness and fraudulent inducement are to be reserved for the arbitration. The motion to dismiss and compel arbitration was granted.

450730/15 4 Oct 2019 Matter of City of New York v Social Services Employees Union Local 371 NY Supreme Debra A. James Unknown Labor Enforcement/Attachment

The Court granted a motion to confirm the arbitration decision and award and rejected a motion to vacate the penalty imposed by the same. The Court found that the carefully reasoned decision of the arbitrator was not irrational as alleged by the petitioner and that the very high hurdle to the application of the public policy exception was not cleared in this case.

570204/19 4 Oct 2019 Allstate Ins. Co. v Brown New York Supreme Court, Appellate Division Hon. Mary V. Rosado Unknown Insurance Award vacatur

The Court affirmed an order and judgment of the NY Civil Court that denied the petitioner’s petition to vacate a master arbitration award in favor of respondent and instead confirmed the award. Referring to CPLR 7511(b), the Court found that the petitioner had failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator’s award.

655954/2018 4 Oct 2019 Broumand v. Abbot NY Supreme Jennifer G. Schecter Unknown Shareholder dispute Compel arbitration

The Court granted a minority shareholder’s motion to file a proposed second amended complaint (“PSAC”) while also granting the defendants’ motion to the extent of compelling arbitration on all claims pleaded in the PSAC. The Court found that the FAA was applicable to this case because the minority shareholder’s claims involved interstate commerce, and the court may not rule on issues of statute of limitations as regards the same. The Court found that the arbitration agreement covered all claims, whether grounded in contract, quasi-contract or tort. Further, the Court found that questions of arbitrability of any claim that plausibly related to the particular shareholdings and agreements were for the arbitrator to decide.  Lastly, the Court found that the defendants had not waived their right to compel arbitration because, throughout the parties’ dispute, they had repeatedly contended that the matter belongs in arbitration.

17-cv-4130 (JS)(AYS) 30 Sep 2019 Tianjin Port Free Trade Zone Int’l Trade Services Company v. Tiancheng Chempharm, Inc., USA EDNY Joanna Seybert CIETAC Shipping Recovery of Costs and Fees

Plaintiff filed an action for the recovery of attorneys fees in connection with enforcing an arbitration award. Defendant did not participate in the arbitration proceeding and raised multiple defenses at the enforcement stage that were rejected by the court.

18-cv-5882 (AJN) 30 Sep 2019 Enel Green Power N. Am., Inc. SDNY Alison J. Nathan Unknown Energy Compel arbitration

Plaintiff brought an action for declaratory relief relating to defendant’s counterclaim in a pending arbitration. Plaintiff asserted that in advancing the arbitration counterclaim, defendant breached a pre-existing release agreement and triggered indemnity obligations. The court held that dispute arose under the release agreement, and was not covered by the earlier partnership agreement, which contained the arbitration clause providing jurisdiction for the pending arbitration. The release agreement also contained a forum selection provision providing that disputes be submitted to the exclusive jurisdiction of the New York state and federal courts. As such, defendant’s motion to compel arbitration of the counterclaim was denied.

17-cv-0657 (DLI)(JO) 30 Sep 2019 Bakary Toure v. Thunder Lube, Inc. EDNY Dora L. Irizarry Unknown Employment Compel arbitration

In granting defendant’s motion to compel arbitration, the Court found that neither the failure of the defendant to raise arbitration in its Answer nor the six-month delay in seeking to compel arbitration was a waiver of the right to arbitrate. The Court further recognized that claims under the Fair Labor Standards Act, 29 U.SC. § 201, et. seq., and New York Labor Law, § 650, are arbitrable.

18-cv-3146(VSB) 29 Sep 2019 Dhaliwal v. Mallinckrodt PLC SDNY Vernon S. Broderick Unknown Employment Compel arbitration

Plaintiff filed an action for the recovery of attorneys fees in connection with enforcing an arbitration award. Defendant did not participate in the arbitration proceeding and raised multiple defenses at the enforcement stage that were rejected by the court.

16-cv-4118 (LAP)/99-cv-11962 (LAP) 27 Sep 2019 Gater Assets, Ltd. V. AO Gazsnabtranzit SDNY Loretta A. Preska Unknown Energy Enforcement

In an enforcement action, defendant Moldovagaz moved to vacate a default judgment in an enforcement action personal jurisdiction grounds. The court found that the Republic of Moldovia exerted control over the operations of Moldovagaz and that the company was established, at least in part, the relieve the Republic’s debt. As such, Moldovagaz was deemed an alter ego of the Republic and barred from raising Fifth Amendment due process objects to personal jurisdiction. The Republic, though a non-signatory to the arbitration clause, was deemed bound under a theory of veil piercing, and thus, properly within the subject matter jurisdiction of the court. The Court also held it was a proper venue of the case, as the dispute was a renewal of an earlier default judgment before the court, not a relitigation of the arbitration, which entirely occurred outside of the United States. The motions of the Republic and Moldovagaz to dismiss the renewal action and vacate the earlier default judgment were denied,

18-cv-2430 (ER) 27 Sep 2019 Buhannic v. American Arbitration Association SDNY Edgardo Ramos ICDR Shareholder dispute Post-award claims against institution

Plaintiff, the losing party in an arbitration, brought suit under the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962, et. seq., against the American Arbitration Association, arbitrators, four law firms, a Delaware Vice Chancellor, Bloomberg News, and the founder, directors, shareholders, and counsel of the opposing party to the arbitration. All parties filed motions to dismiss, which were granted by the court. The court dismissed claims against the American Arbitration Association and arbitrators with prejudice, recognizing the principle of arbitral immunity.

654501/2018 27 Sep 2019 Zachariou v. Manios NY Supreme Andrea Masley ICDR Business Dissolution Enforcement

An arbitral award was issued under the International Centre for Dispute Resolution in 2014 awarding $10,855,452.75 for a party distribution to be handled by a trustee. The award was confirmed in the Southern District of New York in 2015. The award was recognized in Greece in 2018; however, the Greek court refused to declare the Award was enforceable as a monetary judgment has it did not require the defendant, in his individual capacity, to directly pay plaintiff the party distraction. Plaintiff filed an action in the Greek courts, seeking a declaration of her right to the party distribution. The Greek courts dismissed the claim, as negative impact of res judicata prevented the court from granting any relief beyond the Award. Plaintiff filed an enforcement action before the New York Supreme Court, seeking an order compelling defendant to specifically pay plaintiff the distribution pursuant to an arbitral award issued in favor of a trustee. In dismissing the action, the court did not rely on the language of the Award; rather, finding that the relevant contract required all party distribution to be paid to the trust and managed by the trustee.

522835/18 27 Sep 2019 Rubinstein v C&A Marketing NY Supreme Leon Ruchelsman Unknown Employment Pre-arbitration

Plaintiff, a former employee, sough reconsideration of a motion to compel arbitration based on a discovered memorandum encouraging employees to utilize mediation. Plaintiff argued that, in light of the memorandum, the arbitration clause should be interpreted as a mediation clause. Additionally, Plaintiff alleged that, during its earlier consideration, the court incorrectly shifted the burden of proof in establishing the existence of an arbitration clause to plaintiff, the non-moving party. The Court concluded the memorandum related to grievances with current employees and did not cover disputes involving former employees. Furthermore. the Court found that it did not improperly shift the burden of proof as it had exercised its own judgment in interpreting the contract. Therefore, the arbitration clause was deemed valid and enforceable and the motion for reconsideration was denied.

18-CV-4587 (SJF)(AYS) 27 Sep 2019 Jackson v. Rushmore Service Center, LLC EDNY Sandra J. Feurerstein Unknown Consumer Compel arbitration

In a class action, the Court granted defendant’s motion to compel arbitration in an individual capacity and dismiss class action components, recognizing an arbitration agreement and class action waiver in an credit card agreement. The court found that sufficient evidence was presented to evidence that a copy of the agreement had been presented to plaintiff.

652675/2019 26 Sep 2019 Windsor St. Capital, L.P. v. Jin NY Supreme Eileen Rakower FINRA Financial services Enforcement

Plaintiff sought to confirm an arbitration award and leave to serve multiple respondents via alternative means. The court granted the motion to confirm the award with regard to those defendants plaintiff was able to effectuate service upon. The motion for leave to serve respondents via alternative means was denied with an additional 60 days granted for service.

654241/2019 25 Sep 2019 Elkin v. American Portfolio Financial Services, Inc. NY Supreme Debra A. James FINRA Financial services Enforcement

Court granted unopposed petition to confirm award expunging the reference to a dispute on the Central Registration Depository and FINRA’s BrokerCheck.

19-cv-7954(VEC) 11 Sep 2019 DXC Tech. Co v. Hewlett Packard Enter. Co. SDNY Valerie Caproni Technology Enforcement

Parties to an enforcement action sought to file pleadings and related documents under seal. The Court deemed the arbitration award and the supporting memorandum of law, attorney declaration and exhibits to be “judicial documents subject to the First Amendment and common-law presumption of access.” Finding that a refusal to seal documents would not deter the use of arbitration and that there existed a potential general public or specific third party interest in the case, the court ordered the unsealing and public filing of all documents.

18 Civ. 11585 (KPF) 31 Jul 2019 Three Bros. Trading, LLC v. Generex Biotechnology Corp. SDNY KPF AAA Biotechnology Award vacatur

Claimant filed a petition to confirm an award, while defendant moved to vacate, modify or remand the award back to the sole arbitrator for clarification. The court established that: 1) it uses an extremely deferential standard of review for arbitral awards and normally confirmation of an award is a summary proceeding that merely makes what is already a final arbitration award a judgment of the court, so under the FAA it must grant the award unless it is vacated, modified or corrected; 2) an award may be remanded back to the arbitrator for clarification if it is incomplete or ambiguous (that is, susceptible to more than one interpretation) and the court is unable to discern how to enforce it; 3) if remand is granted, the arbitrator is not required to state his reasons for clarification, but only to explain his indefinite, incomplete and ambiguous award in a way sufficient to allow effective judicial review; 4) remand should not be granted where the court can resolve any alleged ambiguities in the award by modification when the award is imperfect in matter of form not affecting the merits. The court granted the defendant’s motion to remand the award back to the arbitrator, as there were several possible interpretations of the award that yielded very different outcomes for the parties, so the court was thus unable to modify the award to resolve the ambiguity without affecting the merits.

14-CV-9662 (JSR) 29 Jul 2019 In Re Petrobras Securities Litigation SDNY JSR Brazilian Market Arbitration Chamber Securities Discovery (s. 1782)

The court ruled that in order to provide discovery in aid of foreign proceedings, section 1782 should be interpreted as requiring personal jurisdiction over the party against which discovery is sought, which was not established in the case’s circumstances. In addition, the court determined that section 1782’s reference to “foreign or international tribunal” does not include arbitral bodies established by private parties, so the application also failed to meet this requirement.

13-CV-2581 (PKC) (JLC) 15 Jul 2019 CBF Industria De Gusa S/A v. AMCI, Holdings SDNY JLC ICC Commodities Discovery

Claimant sought enforcement against alleged alter egos of the award debtor and asserted fraud claims against them. Among other issues, respondents requested document production related to the underlying transactions decided  in arbitration, arguing it was necessary to prove that claimant is the one who broke their agreement and respondents the ones who suffered the negative consequences. The court ruled that, as Claimant had also raised state law fraud claims, the production requested was not a collateral attack on the award and ordered the requested documents to be produced.

18 Civ. 7162 (ER) 2 Jul 2019 Rollins v. Goldman Sachs & Co. LLC et al SDNY ER FINRA Financial services Compel arbitration

In case where either U.K. law or New York law could arguably apply, the court ruled that the arbitration clause was valid under both, and any issues of conflict of laws can be decided by the arbitrator. The court also established that under New York law all the claims were within the scope of the arbitration agreement, including: 1) claims based on provisions protecting whistleblowers under regulations of the Commodity Futures Trading Commission and the Securities Exchange Commission, and 2) claims of fraudulent inducement and defamation.

650887/18  2 Jul 2019 Matter of Steyn v CRTV, LLC Appellate Division Gische, Kapnick, Kern, Moulton, Renwick AAA Commercial Rules Entertainment Award vacatur

The Appellate Division ruled that an arbitrator did not manifestly disregard the law when she awarded attorneys’ fees relying on her authority under the arbitral rules. The court decided that interpreting those rules as granting broader authority than New York law on the subject was not unreasonable. However, it determined that the arbitrator lacked jurisdiction over a counterclaim, as the party which filed it had not signed an arbitration agreement with the counter-respondent, which had objected to it from the beginning.

19-MC-0287-LTS 1 Jul 2019 In Re the Petition of Galaxy Energy and Resources Co. Pte. Ltd. for Discovery pursuant to 28 U.S.C. § 1782 SDNY LTS Unknown Commodities Discovery (s. 1782)

The court denied a request for discovery in support of proceedings to enforce a Singaporean award. The court considered that the assistance to foreign proceedings under section 1782 is only available to “adjudicative” proceedings. Therefore, proceedings for the recognition and enforcement of awards are excluded, as in those cases the merits of the dispute have already been decided.

18-cv-7705 28 Jun 2019 Superior Energy Services Columbia S.A.S. and Superior Energy Services, Inc. v. Premium Petroleum Services S. De R.L., Victor Augusto Palacio Gaitan, and Maria Eugenia Hernandez Rojas SDNY Hon. Andrew L. Carter, Jr. ICC Oil & Gas Enforcement

Court granted Petitioners’ request to confirm the final arbitral award and denied Respondents’ petition to vacate.  The Court contemplated and analyzed the Respondents’ contentions that (i) they were unable to fully present their case; (ii) the arbitral tribunal manifestly disregarded the terms of the parties’ agreement; and (iii) the arbitral award was contrary to public policy.  Respondents alleged that they were unable to present their case during the arbitration proceeding as Petitioners’ employee had “impermissibly contacted” the Respondents’ “only non-party witness, which caused the witness not to testify…” and the arbitral tribunal was therefore “unable to consider the full testimony of the witness.”  The Court determined that Respondents were fully able to present their case as the arbitral tribunal “expressly considered the misconduct…adequately and fairly addressed the issue and any potential negative consequences, and granted [Respondents’] sought after relief.”  In particular, the Court noted that the arbitral tribunal admitted the “witness statement in its entirety and denied [the Petitioner] an opportunity to cross-examine that testimony.”  The Court also did not find that the arbitral tribunal manifestly disregarded the parties’ agreement stating that “[v]acatur for manifest disregard of contractual terms applies only under two circumstances: (1) if the arbitral award contradicts an express and unambiguous term of the contract; or (2) if the award so far departs from the terms of the agreement that it is not even arguably derived from the contract,” and noting that “the Tribunal  carefully considered the terms negotiated by the parties.” Lastly, the Court rejected the contention that the award was contrary to public policy as it would function as a punishment or penalty rather than appropriate damages: Respondents did not point to any evidence that the final award in fact functions as a penalty; rather, it put Petitioners back in the place they would  have been had the product they  received been worth the value they paid.  “Without a compelling reason to vacate, modify, or correct the Final Award, the Court must grant the Petition to Confirm.”

18‐1918‐cv 4 Jun 2019 Tianjin Port Free Trade Zone Int’l Trade Serv. Co. v. Tiancheng Chempharm, Inc. USA 2d Circ. Hon. Brian M. Cogan, Hon. Gerard E. Lynch, Hon. Raymond J. Lohier CIETAC Dietary Supplements Enforcement

In a summary order, the Court of Appeals for the Second Circuit affirmed the judgement of the District Court for the Eastern District of NY. The Court confirmed the arbitral award and rejected the Respondent-Appellant’s argument that CIETAC’s efforts to notify the Respondent did not meet American standards of due process. In particular, the Court held that “notice mailed directly to an entity is sufficient to afford it due process”. The Court also confirmed the District Court’s finding that the Respondent forfeited the argument that the contract is fraudulent by not raising it as a defense in the arbitration itself.

16-cv-374 3 Apr 2017 Certain Underwriting Members at Lloyd’s of London v. Insurance Co. of the Americas SDNY VSB Unknown Reinsurance Award vacatur

Petitioner sought vacatur of an arbitral award on the ground that, inter alia, one party appointed arbitrator was evidently partially. The court found that the arbitrator failed to disclose significant and material relations with one of the parties and a witness in the arbitration. The court affirmed that failure to disclose such relations does not per se warrant a finding of evident partiality but that evident partiality will be found where the facts “not disclosed suggest a material conflict of interest such that a reasonable person would have to conclude that an arbitrator was partial to one party.” Such was the case in the matter before the court, and the court vacated the award. The court also rejected respondent’s argument that a different standard for evident partiality should apply in tripartite industry arbitrations.

15-cv-1474 29 Mar 2017 Westcode, Inc. v. Mitsubishi Elec. Corp. NDNY MAD/DEP Unknown Joint venture Compel arbitration

The court denied plaintiff’s request for reconsideration of its petition to compel arbitration. The court found that plaintiff had waived its right to arbitrate by initiating court proceedings and that defendant had been prejudiced by the court proceedings.

16-cv-00461 27 Mar 2017 Eisen v. Venulum Ltd. WDNY EAW ICC Finance Compel arbitration

Defendants moved to compel arbitration under the third of three contracts with plaintiff. The court concluded that the third contract (and its arbitration agreement) superseded the prior two and was the operative agreement. The court then concluded that it, rather than an arbitrator, should decide the validity of the arbitration agreement in light of the language of the ICC Rules. The court found that the arbitration agreement was unconscionable under New York law and therefore invalid because it was drafted in a way as to preclude certain claims from plaintiff. Consequently, the court declined to compel arbitration.

16-cv-2140 17 Mar 2017 Al Maya Trading Establishment v. Global Exp. Mktg. Co. SDNY RA AAA Commercial Rules/ICDR Food products Award confirmation

Respondent sought vacatur of an award on the basis that the arbitral tribunal’s discovery rulings had deprived respondent of evidence necessary for its case. The court deferred to the tribunal’s discretion in managing discovery issues and also found no prejudice to respondent. The court denied the motion to vacate, enforced the award, and ordered respondent to pay post-award interest.

Nos. 15_1133_cv(L), 15_1146_cv(CON) 2 Mar 2017 CBF IndÏstria De Gusa S/A, et al. v. AMCI Holdings, Inc., et al. 2d Circ. CJ, Kearse, Pooler, Sack ICC Commodities Enforcement

See NYIAC Case Law Chronicle

16-cv-05294 28 Feb 2017 LGC USA Holdings Inc. v. Julius Klein Diamonds, LLC SDNY JMF Ad hoc Diamond Award confirmation

Petitioner sought confirmation of an award and respondents cross-moved for its vacatur. The court first concluded that it had subject matter jurisdiction over the dispute because the award was “not entirely domestic in scope,” as it involved property and performance abroad, and was therefore governed by the New York Convention. The court also rejected respondents’ arguments that the action should be remanded to state court. Finally, the court rejected that the award should be vacated, finding that the chairperson was not partial or corrupt and that the tribunal did not manifestly disregard the law.

16-mc-00412-P1 27 Feb 2017 General Dynamics UK v. Libya SDNY LTS ICC Communications Post-award injunction

Petitioner sought an order restraining Libya’s assets held in the United States until a default arbitral award was paid. The court denied the request, finding that the existence of a default award alone does not evidence irreparable harm and that petitioner failed to satisfy the standards under the FSIA for attachment of Libya’s assets.

16-cv-02575 23 Feb 2017 Amtrust Financial Services, Inc. v. Lacchini SDNY PAE Unknown Insurance Challenge to arbitrator

Plaintiff brought federal RICO claims against an arbitrator presiding over two arbitrations in Milan, alleging that the arbitrator presided over a rigged arbitration and accepted bribes. The court did not reach the merits of the claim, however, and instead dismissed the case for lack of personal jurisdiction over the Italian arbitrator, finding that emails sent to by the arbitrator to New York could not establish the court’s jurisdiction over the arbitrator.

07-cv-02799 14 Feb 2017 Lakah v. UBS AG SDNY LAP ICDR Finance Compel arbitration

Respondents moved to compel arbitration against two individual non-signatories to an arbitration clause. The court found that the individuals were bound by the arbitration agreements under theories of veil piercing and estoppel because they dominated and controlled the signatory entity to commit wrong-doing and injure respondents and that they personally benefited from the underlying contract.

16-cv-07241 7 Feb 2017 HDI Global SE v. Lexington Insurance Company SDNY CM Unknown Reinsurance Compel arbitration

Defendant sought to compel arbitration based on an arbitration clause contained in the parties’ contract. Plaintiff objected, arguing that the contract was void for lack of mutual assent. The court affirmed the principal of severability and concluded that plaintiff’s argument raised strictly a question of contract interpretation, which was for the tribunal to resolve. The court granted defendant’s motion and compelled arbitration.

15-cv-07728 6 Feb 2017 Organizacion Ideal v. FHR Mexico Management Co. SA de CV SDNY ER ICDR Hospitality Award confirmation

The court confirmed an arbitral award against two Mexican hotels.

16-1267-cv 31 Jan 2017 National Indemnity Co. v. IRB Brasil Reseguros S.A. 2d Circ. Cabranes, Lynch, Winter Unknown Reinsurance Award vacatur

Defendant sought vacatur of an arbitral award on the basis that an arbitrator was partial because he heard an arbitral dispute involving related parties. The court reiterated Second Circuit precedent that “evident partiality” exists where “a reasonable person . . . would have to conclude that an arbitrator was partial to one side.” The court found significant that the arbitrator had no familial, business, employment or other financial relationships with any parties involved. The court concluded no evident partiality existed and confirmed the award.

No. 16-CV-2869 17 Jan 2017 Trina Solar US, Inc. v. Jasmin Solar Pty Ltd. SDNY VEC Unknown Solar energy Enforcement

The court denied a motion to vacate an arbitral award on various grounds, including a challenge based on the tribunal’s decision to issue its award against a non-party to the underlying contract. The court accordingly confirmed the award.

No. 16-CV-3568 10 Jan 2017 Alstom v. General Electric Company SDNY JMF ICC Transport Compel arbitration

In a dispute arising out of a post-closing purchase price adjustment process, the court applied the “plain language of the partiesÍ agreement” to hold that “the dispute must be submitted, in the first instance at least, to the independent accounting firm” rather than an arbitral tribunal.

16-cv-05724 5 Jan 2017 Milestone Systems A/S v. On-Net Surveillance Systems, Inc. SDNY JMF DIA Software Award confirmation

The court deferred its decision on an application to enforce a partial award, pending resolution of enforcement proceedings in Denmark.

No. 15-cv-1256 3 Jan 2017 Albus Denizcilik Ltd. v. Progress Bulk Carriers Ltd. EDNY KAM Unknown Maritime Enforcement

In action to enforce an award through attachment against assets located in the EDNY, the court denied a motion to vacate the Rule B Attachment and to quash plaintiffÍs subpoena seeking further discovery regarding the existence of property.

No. 16-cv-1861æ 20 Dec 2016 Zurich Ins. Co. v. Crowley Latin Am. Servs., LLC SDNY JPO Unknown Insurance / Transportation Compel arbitration

An insurer, as subrogee of its insured, moved to compel arbitration against a transportation company that had contracted with the insured.æ The court granted the motion to compel arbitration, rejecting defenses that arbitration was barred by state insurance law, the doctrine of laches, or a purported limiting clause in the underlying contract.

No. 16-cv-2160 9 Dec 2016 Kailuan (Hong Kong) Int’l Co. Ltd. v. Sino East Minerals, Ltd. SDNY PKC ICC Commodities Enforcement

The court denied a request to vacate an arbitral award on the basis that the tribunal exceeded its authority.æ Petitioner argued that the award contradicted the clear terms of the contract, impermissibly modified other terms, and decided issues not presented to the tribunal.æ The court concluded that the tribunal simply interpreted the contract, rather than ignoring or modifying it, and that petitioner’s disagreement with the interpretation was no basis to vacate the award.æ The court found that the tribunal did decide an issue not directly presented to it but that determination of that issue was critical to other issues presented by the parties.æ Consequently, the tribunal did not exceed its mandate in deciding the disputed issue.

No. 15-cv-02340 7 Dec 2016 Mondis Tech. Ltd. V. Wistron Corp. SDNY RA Unknown Electronics Enforcement

The court granted petitioner’s motion pursuant to Rule 60(a) of the Federal Rules of Civil Procedureæto correct a prior judgment confirming an arbitral award to specify the amount the amount respondent needed to pay.

No. 16-cv-5612 2 Dec 2016 Byk v. Spira SDNY KBF Israel Diamond Exchange Diamond Enforcement

The court stayed an action for confirmation of an arbitral award, pending resolution of related litigation in Israel.ææ

Chapter 11, No. 06-12226 21 Nov 2016 Dev. Specialists, Inc. v. Varanese (In re Coudert Bros. LLP) Bankr. SDNY RDD ICDR Partnership Enforcement

Bankruptcy court confirmed arbitral award against former partner of liquidated law firm.

No. 16-cv-07116 21 Nov 2016 Wild Bunch, S.A. v. Worldview Entertainment Holdings, Inc. SDNY GBD AAA Entertainment Enforcement

The court granted an unopposed petition to confirm an arbitral award and ordered prejudgment interest at the New York statutory rate of 9% and postjudgment interest at the federal rate.æ

No. 16-cv-1435 21 Nov 2016 Color-Web, Inc. v. Mitsubishi Heavy Indus. Printing & Packaging Mach. Ltd. SDNY DLC AAA Commercial Rules Printing Compel arbitration

The court compelled arbitration of claims brought by both signatory and non-signatory plaintiffs against both signatory and non-signatory defendants under the principle of estoppel. The court found that the non-signatory defendants could invoke the arbitration clause due to their close relationship with the signatory defendant (they were its corporate parent, amongst other things) and the identical nature of the claims against all defendants. The court also concluded that the non-signatory plaintiffs were estopped from denying the arbitration clause because they would have received a direct benefit from the contract containing the arbitration clause.

No. 16-mc-355 16 Nov 2016 In re Kleimer N.V. SDNY VM LMAA Maritime Discovery

The court refused to quash a discovery subpoena directed against a third-party in aid of foreign arbitration under 28 USC 1782.æ The court concluded that Section 1782’s requirements had been satisified because:æ (1) the third-party had sufficient contacts with New York to be considered found or residing in New York; and (2) a foreign arbitral tribunal is a “foreign tribunal” under the statute.æ The court also concluded that the subpoena did not present an undue burden on the third-party and that the third-party had properly been served.

No. 16-306 16 Nov 2016 Infrassure, Ltd. v. First Mutual Transp. Assur. Co. 2d Circ. Jacobs, Livingston, Rakoff Unknown Reinsurance Compel arbitration

Parties to a reinsurance certificate disputed whether an arbitration clause in the body of the certificate or one in an endorsement to the certificate controlled. The court concluded that the language of the clause in the endorsement limited its application and it was inapplicable to the present facts. The court affirmed the lower court, held that the clause in the main certificate applied, and compelled arbitration.

No. 16-cv-548 14 Nov 2016 Azzawi v. Int’l Ctr. for Dispute Resolution SDNY KPF ICDR Construction Enforcement

Plaintiff brought suit against the respondent in an underlying arbitration and the ICDR, seeking to vacate an arbitral award and claiming fraud against the respondent.æ The court dismissed the case with prejudice, concluding that plaintiff had no standing to sue the respondent or the ICDR because plaintiff had not been a party in the underlying arbitration.

No. 16-170-cv 7 Nov 2016 PDV Sweeny, Inc. v. ConocoPhillips Co. 2d Circ. Chin, Raggi, Sack ICC Joint venture Enforcement

The court affirmed confirmation of an arbitral award, finding that the award did not violate public policy. The court rejected petitioners’ argument that a liquidated damages provision in the contract (that the tribunal applied) violated the public policy against penalty provisions in contracts. In doing so, the court affirmed that the public policy exception to enforcement is “construed very narrowly” and that New York courts have repeatedly enforced liquidated damages provisions, finding them permissible.

No. 15-cv-02340 3 Nov 2016 Mondis Tech. Ltd. V. Wistron Corp. 2 SDNY RA Unknown Electronics Enforcement

The court enforced an arbitral award, rejecting respondent’s arguments that the award violated public policy and due process requirements or, alternatively, that respondent had already satisfied the award. Respondent had made some payment on the final award but withheld 20% of the amount it was ordered to pay, citing obligations under Taiwanese tax laws and regulations as its reason for doing so. Respondent argued: (1) that paying the full amount of the award would cause it to violate a foreign law (Taiwanese), which contravened US public policy; (2) that it had not been able to present its case on Taiwanese tax law; and (3) that it had satisfied the award by its partial payment. The court rejected all three arguments. On public policy, the court found that respondent failed to show that payment would in fact violate Taiwanese law. On due process, the court found that respondent had failed to raise the issue during the arbitration and that the tribunal therefore did not have the authority to make a decision on that issue. On satisfaction of the award, the court concluded that there was no basis for respondent to make any withholding and that full payment was required.

No. 16-cv-5925 1 Nov 2016 United Media Holdings, NV v. Forbes Media, LLC SDNY PKC ICDR Publishing Enforcement

In aid of their application to vacate an arbitral award, petitioners sought discovery from the opposing party, the arbitrator, and the AAA concerning their knowledge that the arbitration had proceeded illegally. Petitioners alleged that the arbitration was illegal because their controlling owner had been placed on a list of specially designated nationals by the US government, which prohibited the arbitration absent a license from the US government (that was not obtained for several months after the arbitration was initiated). Explaining that confirmation actions are intended to be “expedited proceedings,” the court denied the discovery request. It nonetheless allowed petitioners leave to amend their vacatur application.

No. 16-cv-4437 9 Oct 2016 Ceona Pte Ltd. v. BMT Giant, S.A. De C.V. SDNY WHP Unknown Maritime Enforcement

The court granted an unopposed petition to confirm an arbitral award and ordered prejudgment interest at the New York statutory rate of 9% and postjudgment interest at the federal rate. The court found that an order for attorneys’ fees and costs for the petition was justified but refused to make such an order since petitioner failed to substantiate its requests for fees and costs.

No. 12-cv-4502 30 Sep 2016 Sistem Muhendislik Insaat Sanayi Ve Ticaret, A.S. v. Kyrgyz Republicæ SDNY ALC ICSID Additional Facilityæ Real estate Enforcement

Court enforced an award against Kyrgyz Republic, rejecting the State’s argumentsæthat the arbitral tribunal lacked jurisdiction and that New York was not a convenient forum.æ The State alleged that, in the Kyrgyz-Turkey BIT at issue, it only agreed to arbitrate under the mainæICSID Rules and that the tribunal’s exercise of jurisdiction under the ICSID Additional Facility Rules was improper.æ Court concluded that the BIT’s broad language submitted disputes generally to the ICSID organization, which included both the main rules and Additional Facility Rules.æ Court also found that the State failed to meet its “heavy burden” of establishing that New York was an inconvenient forum.

No. 16-cv-6894æ 26 Sep 2016 Biocon Ltd. v. Abraxis Bioscience SDNY RMB ICC Medical Interim relief

Court denied a request for preliminary injunction and temporary restraining order during the pendency of arbitration, finding that the applicant failed to meet its burden of proving it would suffer irreparable harm absent the interim relief.æ The applicant requested the interim relief to restrain the opposing party’s termination of a licensing agreement concerning distribution of cancer medicine, claiming irreparable harm to the patients using the medicine and to itself due to lost customers and potential government fines.æ The court affirmed earlier case law that held that the irreparable harm shown must be to the applicant and not to third parties.æ In addition, the court held that no irreparable harm exists where monetary damages can compensate a party, as is the case where a party faces loss of customers or government fines.ææ

Chapter 11, No. 06-12226 23 Sep 2016 In re Coudert Bros. LLP Bankr. SDNY RDD ICDR Partnership Enforcement

Bankruptcy court confirmed arbitral award against former partners of liquidated law firm, notwithstanding that the confirmation involved both core and non-core matters under the Bankruptcy Code.

No. 15-cv-7508 23 Sep 2016 Imbruce v. Am. Arbitration Ass’n SDNY NRB AAA Commercial Rules Unknown Post-award claims against institution

Court rejected plaintiff’s state law breach of contract and tort claims against the administering arbitral institution concerning an alleged improper collection of fees.æ Court affirmed that the institution enjoined arbitral immunity under both the common law and the AAA’s rules and dismissed the action.

No. 16-cv-3356 22 Sep 2016 Cooperativa Agraria Indus. Naranjillo LTDA v. Transmar Commodity Grp., LTD SDNY LLS The Cocoa Merchants' Association of America Agriculture Enforcement

Court found that parties did not clearly agree to arbitrate, where the parties’ one-page contract incorporated a standard contract that included an arbitration clause.æ Court concluded that means of incorporation was confusing and that respondent did not appear to have access to the standard terms that included the arbitration agreement.æ As such, the incorporation of the arbitration clause was not effectively accomplished.ææ

No. 16-cv-6255 13 Sep 2016 Herm_s of Paris, Inc. v. Swain SDNY CM AAA Employment Rules Employment Compel arbitration

In motion to compel arbitration of employment related claims and to enjoin litigation in New Jersey, court granted motion to compel arbitration and denied motion to enjoin New Jersey litigation. Court found that respondent did not adduce evidence that his consent to arbitration in employment agreement was unknowing or involuntary. While court found that it had the authority to enjoin theærespondentæfrom pursuing the New Jersey proceedings, it cast doubt on the contention that federal district courts have the power to enjoin a state court action when granting a petition to compel an arbitration.

No. 652946/2015 6 Sep 2016 Kardemir Ithalat Ihracat Ltd. Sti. v. Uniwire Trading LLC NY Supreme Oing Swiss Rules of International Arbitration Commodities Compel arbitration

In motion for summary judgment in lieu of complaint with respect to promissory note, defendant sought,æinter alia, to dismiss or stay the action and compel arbitration. While promissory note provided that New York law governed and that plaintiff is “entitled to seek judgment in the New York judicial system,” it also provided that the arbitration clause “of all previous contractual dealings (‘sales contracts’) shall also remain in effect, Calling for arbitration in Switzerland.î Prior sales contracts had provided for arbitration in accordance with Swiss Rules of International Arbitration. The court determined that the dispute before it arose exclusively from the note and thus the express submission to New York courts was effective.

Case 1:14-cv-00910 30 Aug 2016 State of New York v. Grand River Enterprises Six Nations, Ltd. WDNY LGF NAFTA Cigarettes Documentary evidence

In context of report and recommendation made by magistrate judge with respect to motions to dismiss various claims by the State of New York, that judge made recommendations concerning weight and relevance of evidence adduced in related NAFTA arbitration.

No. 1:14-cv-05207 5 Aug 2016 Incredible Foods Group, LLC v. Unifoods, S.A. de C.V. EDNY KAM ICDR Food and beverage Enforcement

Court considered and granted in part applications for attorneysÍ fees in context of successful motion to confirm award.

No. 13-4022 2 Aug 2016 CorporaciÑn Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v. Pemex_ ExploraciÑn Y ProducciÑn 2d Circ. Jacobs, Raggi, Winters ICC Energy Enforcement

See NYIAC Case Law Chronicle.

No. 07-cv-2799 29 Jul 2016 Lakah v. UBS AG SDNY LAP AAA Commercial Rules Banking Compel arbitration

In context of trial to determine scope of arbitration agreement, petitioners brought motion to dismiss case for lack of subject-matter jurisdiction pursuant to Federal Rules of Civil Procedure or, in the alternative, to dismiss case voluntarily with prejudice pursuant to such Rules. The court found that it continued to have subject matter jurisdiction, but granted request to voluntarily dismiss petitionersÍ request.

Index No. No. 650782/2016 14 Jul 2016 Selvi Singapore Trading Pte Ltd. v. Harris Freeman Asia Ltd. NY Supreme Singh American Spice Trade Association Commodities Enforcement

Court denied motion to vacate two unreasoned awards. Despite the fact that neither award indicated its reasoning, the court found a ñcolorable basisî for the awards and that applicable rules vested arbitral tribunal to determine damages.

No. 15-cv-7054 8 Jul 2016 Dynamic Int’l Airways, LLC v. Air India Ltd. SDNY PKC Ministry of Civil Aviation in India Air transportation services Compel arbitration

Both parties moved to compel arbitration but pursuant two different alleged arbitration clauses and in two different forums (New York and India).æ In interpreting the parties’ agreements, the court applied New York state contract law since its federal jurisdiction was premised on diversity jurisdiction (as opposed to federal question jurisdiction).æ The court concluded that the clause calling for arbitration in New York was not binding because it did not contain any material terms.æ The clause calling for arbitration in India did contain material terms,æhowever, demonstrating a clear agreement to arbitrate and binding the parties to its terms.æ The court granted the motion to compel arbitration in India.æ

No. 13-1708-cv 24 Jun 2016 Leeward Constr. Co. v. Am. Univ. of Antigua — College of Med. 2d Circ. Carney, Hall, Pooler AAA Construction Rules Construction Enforcement

Court affirmed confirmation of arbitral award and rejected respondent’s argument that the arbitral tribunal failed to render a reasoned decision.æ Court explained that the award need only contain a substantive discussion of the tribunal’s rationale to be considered “reasoned” and need not include a “line-by-line” analysis.

No. 1:15-cv-06194 22 Jun 2016 GE Transportation (Shenyang) Co., Ltd. v. A-Power Energy Generation Systems, Ltd. SDNY PAE HKIAC Energy Enforcement

Court granted petition to confirm and enforce a foreign arbitration award. It additionally granted the award creditor a permanent injunction restraining the award debtor from transferring or otherwise dissipating its assets “wherever they are located, whether in its own name or not, and whether solely or jointly owned, or directly or indirectly controlled” pending full payment of the judgment.

No. 15 Civ. 8221 20 Jun 2016 Alstom Brasil Energia E Transporte Ltda. v. Mitsui Sumitomo Seguros S.A. SDNY AKH ICC Insurance Enforcement

Court granted petition to confirm arbitration award against non-signatory, finding that non-signatory party had, through subrogation, assumed the obligation to arbitrate. Court also rejectedæforum non conveniensæargument, finding that New York was a proper forum for enforcement because one party was a U.S. entity, the underlying arbitration agreement provided for arbitration in New York, and the parties had, in fact, conducted arbitration in New York.

No. 15-CV-4746 16 Jun 2016 Celltrace Commc’ns Ltd. v. Acacia Research Corp. SDNY AJN ICC Unknown Compel arbitration

Parties’ contract provided that they “agree first to try in good faith to settle the dispute by formal arbitration under the [ICC Rules] before submitting the matter to litigation” in New York. Finding that the contract contemplated binding arbitration despite some references to litigation, and that there were no good faith efforts to initiate formal arbitration under the ICC Rules, the court granted a motion to compel arbitration.

Index No. 161364/2015 8 Jun 2016 Batbrothers LLC v. Golden E. Mongolia LLC NY Supreme Ostrager Moscow City Court of Arbitration Unknown Enforcement

In action under Article 53 of the CPLR to enforce a foreign country money judgment entered in the Moscow City Court of Arbitration, court denied motion for alternative means of service.

No. 15 Civ. 4983 6 Jun 2016 St. Shipping & Transp. PTE, Ltd. v. Agathonissos Special Mar. Enter. SDNY AT SMA Maritime Enforcement

Court confirmed award and denied motion to vacate, finding that arbitral tribunalÍs refusal to hear certain evidence did not amount to misconduct or denial of fundamental fairness under the Federal Arbitration Act, s. 10(a)(3).

No. 15-cv-8721 12 May 2016 Consol. Precision Prods. Corp. v. Gen. Elec. Co. SDNY PKC AAA Commercial Rules Manufacturing Compel arbitration

On motion to stay breach of contract and declaratory judgment claims, the court found that dispute was referable to arbitration. Applying the Second Circuit’s decision inæKatz, analyzed previously by NYIAC in a July 2015 Case Law Chronicle, the court granted the stay.æ

No. 15 Civ. 9766 12 May 2016 ICC Chemical Corporation v. Nordic Tankers Trading A/S SDNY KPF SMA Shipping Enforcement

Court denied motion to vacate award issued in charterparty dispute and confirmed award. The court rejected the award debtor’s allegation of manifest disregard of the applicable law on burden of proof.æ

No. 15-cv-0467 5 May 2016 Sexton v. Karam 2d Circ. Droney, Raggi, Sack ICDR Gaming industry Enforcement

Court affirmed confirmation and denial of a request to vacate a foreign arbitral award, finding that the petitioner provided no evidence of fraud or corruption by the arbitrators.

No. 13-cv-8655 2 May 2016 Leong v. Goldman Sachs Grp. SDNY JMF LCIA Banking Anti-suit injunction

Court enjoined plaintiff from proceeding with claims before the Commodities Future Trading Commission (CFTC) and ordered any dispute to be brought to arbitration before the LCIA, pursuant to the parties’ agreement. Court found that whether or not the CFTC was a legitimate alternative forum was irrelevant because the arbitration agreement barred proceedings in an alternative forum. Federal law also did not prohibit the parties’ agreement to arbitrate.

No. 15-cv-0532 29 Apr 2016 Desarrolladora Farallon S. De R.L. De C.V. v. Cargill, Inc.æ SDNY SAS Unknown Construction Documentary evidence

Plaintiff sought to overturn court’s decision to dismiss complaint on alleged basis of new evidence submitted in related arbitration. Court denied the request.

No. 653715/14 29 Apr 2016 Garthon Business Inc. v. Kirill Ace Stein Appellate Division, NY Supreme Gische, Manzanet-Daniels, Mazzarelli, Richter, Sweeny LCIA Financial consulting Compel arbitration

Court held that a forum selection clause in the first of four agreements, which designated New York courts for the resolution of disputes, controlled, notwithstanding that the last two agreements cancelled the first and second agreements. The last two agreements specified that disputes were to be resolved by arbitration, but the court concluded that such arbitration clauses did not apply since the two last agreements did not expressly terminate the New York forum selection clause in the first agreement. In addition, the court found that the New York forum selection clause was broader than the later arbitration clauses. The court also concluded that claims otherwise subject to the arbitration clauses could be heard before a New York court because they were “inextricably bound together” with the other claims and should therefore be litigated together.æ

No. 10-cv-5414æ 28 Apr 2016 Schatz v. Cellco P’ship SDNY JMF Unknown Consumer protection Enforcement

Court confirmed an arbitral award, holding that the arbitrator “fully and finally” resolved all of the parties’ claims, including claims for attorney’s fees and costs, either expressly and/or by use of broad catch-all language in the award’s conclusion.

No. 1:15-cv-07405 27 Apr 2016 Controlled Demolition, Inc. v. CCA Bahamas, Ltd. SDNY JGK Unknown Construction Compel arbitration

Court denied motion to compel arbitration of breach of contract claims.

No. 15 Civ. 8429 25 Apr 2016 China Media Express Holdings, Inc. v. Nexus Executive Risks Ltd.æ SDNY VM HKIAC Insurance Compel arbitration

Court stayed claims pending before it and compelled arbitration in Hong Kong, finding that an arbitration clause’s wordingæwas broad and that the factual allegations asserted by the plaintiff were within the scope of that clause.æ Court rejected the plaintiff’s argument that fraud in the inducement claims dealt with pre-contractual activities that were outside the scope of the arbitration clause and affirmed Second Circuit case law that held thatæarbitrators should consider such claims.

No. 16-cv-1818 21 Apr 2016 Jenlor Int’l LLC v. Agribusiness Ltd. DMCC SDNY RMB Unknown Shipping Enforcement

Court granted petitioner’s unopposed petition to confirm foreign arbitral award.

No. 15-cv-8044 21 Apr 2016 Inficon, Inc. v. Verionix, Inc. SDNY RWS ICDR Technology Enforcement

Court denied a petition to vacate a foreign arbitral award, finding that the arbitral tribunal did not manifestly disregard the law or deny petitioner of fundamental fairness in the proceedings. First, the court affirmed earlier case law and held that a damages calculation based on a misappropriation of the law does not constitute a manifest disregard of the law as to warrant vacatur. Second, the court concluded that the tribunal did not deny petitioner of a fair hearing by refusing to consider relevant evidence but, instead, that the tribunal simply found the evidence not to be credible.

No. 14 Civ. 2168 15 Apr 2016 Golden Horn Shipping Co. v. Volans Shipping Co. SDNY JCF LCIA Maritime Enforcement/Attachment

In context of pending international maritime arbitration, clerk of Court had issued a writ of attachment and garnishment which was served on bank trust company in which potential award debtor held USD correspondent account. After arbitral award was issued, Court considered whether to reduce amount of security under Supplemental Rule B Attachment by,æinter alia, costs awarded by arbitrator.æ

No. 14 Civ. 8338 13 Apr 2016 Probulk Carriers Ltd. v. Marvel Int’l Mgmt. & Transp. SDNY LAK London Maritime Arbitrators Association Maritime Post-Award Discovery

Court denied motion to quash subpoenas for evidence from a foreign national to aid in locating assets for the enforcement of a foreign arbitral award that had already been confirmed by the court. In enforcing the subpoenas, the court found that service of such subpoenas was permitted on a foreign non-party witness, that compliance with the Hague Convention on the Taking of Evidence Abroad was not required, and that compliance with the subpoenas as modified by the court would not be unduly burdensome.æ

No. 14 Civ. 3042 25 Mar 2016 Rio Tinto Plc v. Vale SDNY RMB LCIA Mining Documentary evidence

On objections to March 9, 2016 decision and order in the same matter (summarized below), court affirmed the March 9 decision and order.

No. 15 Civ. 3283 11 Mar 2016 Albaniabeg Ambient Sh.p.k. v Enel S.p.A SDNY PGG National and International Arbitration Chamber of Rome Construction Enforcement

In action to enforce a judgment of the Tirana District Court in Albania, one party moved to remand the matter to state court, arguing that the U.S. district court did not have subject matter jurisdiction over this action. Court granted motion, holding that, in making a determination as to subject matter jurisdiction, courts look to Section 203 of the Federal Arbitration Act. Court recognized that, while certain defenses asserted in this action related to arbitration, no party sought to confirm or vacate an arbitral award, to compel arbitration, to stay or enjoin arbitration proceedings, or to obtain preliminary relief in aid of arbitration within the meaning of Section 203.

No. 15 Civ. 3975 10 Mar 2016 Nat’l Indem. Co. v. IRB Brasil Resseguros S.A. SDNY NRB Unknown Reinsurance Enforcement

Court granted petition to confirm three awards, finding, amongst others, no “evident partiality” so as to warrant vacatur.

No. 14 Civ. 3042 9 Mar 2016 Rio Tinto PLC v. Vale S.A. SDNY AJP LCIA Mining Documentary evidence

Court had entered protective order concerning use of certain documents in London arbitration. Court held that it retained jurisdiction to modify the protective order since the case has been dismissed, and ordered the requested modification.

No. 10-CV-5256 8 Mar 2016 Thai Lao Lignite (Thailand) Co. v. Gov’t of Lao People’s Democratic Republic SDNY KMW Kuala Lumpur Regional Centre for Arbitration Construction/mining Enforcement

In context of petition to confirm a foreign arbitral award, court denied motion for leave to commence execution and discovery in aid of the its earlier sanctions order (imposing sanction for failure to comply with a discovery order).æ

No. 1:12-cv-05191 2 Mar 2016 Lutin Investments, Ltd. v. Nigerian National Petroleum Corporation SDNY SAS ICC Energy Enforcement

After parties entered into settlement agreement concerning enforcement of French judgment on arbitral award, court entered order of dismissal. Petitioner moved to vacate order of dismissal under Rule 60(b) of the Federal Rules of Civil Procedure, contending that the settlement agreement was entered into without authority and under duress. Court denied motion.

No. 653783/15 23 Feb 2016 Kureha Am., LLC (U.S.A.) v. Mercer Tech., Inc. (U.S.A.) NY Supreme Freed Unknown Manufacturing Enforcement

Court granted unopposed motion for order confirming an arbitral award.

No. 15 Civ. 4481 22 Feb 2016 Crescendo Mar. Co. v. Bank of Communs. Co. SDNY JFK LMAA Maritime Enforcement

In action to enforce three arbitral awards, court concluded that that it had jurisdiction to hear the petition, that forum non conveniens dismissal was not warranted, and that the awards were enforceable under the New York Convention. On personal jurisdiction, court affirmed that, while the presence of a defendant’s property within a court’s jurisdiction is generally insufficient to allow the court to hear claims against the defendant unrelated to that property, an exception to that general rule applies where a petitioner seeks to recover on a judgment already adjudicated in a forum with personal jurisdiction over the respondent.

No. 1:15-cv-04485 17 Feb 2016 InterDigital Communications, Inc. v. Huawei Investment & Holding Co., Ltd. SDNY JGK ICC Telecom Enforcement

Court stayed petition for order confirming an award under New York Convention. Annulment proceedings were pending in Paris, the seat of arbitration. Court found that little delay would result from awaiting a decision in the French annulment action, and deferring a decision in this proceeding might avoid inconsistent results.

No. 1:15-cv-04485 11 Feb 2016 InterDigital Communications, Inc. v. Huawei Investment & Holding Co., Ltd. 2 SDNY JGK ICC Telecom Enforcement

In enforcement proceedings, court denied joint request by parties to seal courtroom.

No. 15-1063-cv 9 Feb 2016 Sutherland Glob. Servs. Inc. v. Adam Techs. IntÍl SA de C.V. 2d Circ. Carney, Leval, Livingston Unknown Telecom/services Enforcement

Award debtor contended that arbitral tribunal manifestly disregarded terms of applicable contract and law (New York law), amongst other challenges. Court disagreed, and affirmed judgment of WDNY granting petition to confirm award.

No. 14-CV-6227 28 Jan 2016 In re Sherwin-Williams Co. SDNY RA ICC M&A Scope of ADR clause

Court granted motion to dismiss by Mexican companies for lack of personal jurisdiction, determining that exercising jurisdiction over claims by Ohio company would be unreasonable. Court emphasized that underlying contract envisaged arbitration in Dallas.

No. 14 4036 cv 28 Jan 2016 Zurich Am. Ins. Co. v. Team Tankers A.S. 2d Circ. Cabranes, Lohier, Parker SMA Maritime Enforcement

Court affirmed district court’s order granting motion to confirm award, but reversed the district court’s order awarding attorney’s fees and costs. Court determined that contractual language regarding fee allocation did not suffice to displace the so-called American Rule, and that award under certain statute (28 U.S.C. _ 1927) was not merited.

No. 15-cv-4410 21 Jan 2016 Euro Pac. Capital v. Bohai Pharms. Group SDNY VM CIETAC M&A Compel arbitration

Court denied motion to compel arbitration by a non-signatory, holding that the parties explicitly contracted to resolve all disputes arising from their business relationships in the courts of New York, New York and governed by New York law.æ

No. 1:14-cv-05183 21 Dec 2015 PDV Sweeny, Inc. v. ConocoPhillips Co. SDNY AJN ICC Oil refining Enforcement

Court granted motion under Federal Rule of Civil Procedure 60(a) to correct its September 1, 2015 judgment confirming arbitral awards.

No. 13 Civ. 1917 17 Dec 2015 Funnekotter v. Agric. Dev. Bank of Zimb. SDNY CM ICSID Agricultural Enforcement

In context of enforcement of ICSID award against Zimbabwe, the court granted motion for summary judgment seeking declaration that (1) certain defendants are alter egos of Zimbabwe; (2) plaintiff award creditors may enforce the judgment against assets of these defendants that are located in the United States and used for commercial purposes; and (3) assets frozen pursuant to sanctions established by the United States Department of Treasury’s Office of Foreign Assets Control (OFAC) are property of Zimbabwe that is located in the United States and used for commercial purposes.

No. 15 Civ. 2261 15 Dec 2015 Travelers v. Icdas Celik Enerji Tersane Ve Ulasim Sanayi A.S. SDNY CM ICDR Unknown Enforcement

Court granted unopposed motion for summary judgment confirming an award.

No. 15 CIV. 7639 9 Dec 2015 Navig8 Chemicals Asia PTE, Ltd. and Navig8 Chemicals Pool, Inc. v. Crest Energy Partners, LP SDNY PAE Unknown Shipping Enforcement

After receiving final judgment from SDNY awarding fees and costs in New York Convention enforcement matter, petitioner sought, and obtained, an order pursuant to 28 U.S.C. _ 1963, permitting the SDNY judgment to be registered in the Southern District of Texas and the District of Puerto Rico prior to the expiration of the 30-day time for appeal.

Index No. 650369/2014 2 Dec 2015 Lebedev v. Blavatnik NY Supreme Scarpulla Unknown Joint venture Anti-suit injunction

Plaintiff sought preliminary injunction to restrain the defendants from pursuing arbitration in London and from commencing any other foreign proceeding. Court denied motion, holding that London arbitration involved different parties and was not commenced in bad faith.

No. 14 Civ. 7965 1 Dec 2015 Hyundai Merch. Marine Co. v. Mitsubishi Heavy Indus., Ltd.æ SDNY LGS Unknown Shipping Litigation

In an action for losses suffered as a result of the sinking of a ship that defendant, a Japanese company, designed and manufactured in Japan, court granted motion to dismiss complaint for forum non conveniens. While the complaint did not concern arbitration directly, the plaintiff, a South Korean company, was subject to an arbitral claim by a third-party in New York arising out of cargo loss from the ship’s sinking. The court concluded that plaintiff’s participation in the New York arbitration did not counteract other factors weighing in favor of dismissal.

No. 15 CIV. 7639 24 Nov 2015 Navig8 Chemicals Asia PTE, Ltd. and Navig8 Chemicals Pool, Inc. v. Crest Energy Partners, LP 2 SDNY PAE Unknown Shipping Enforcement

See fourth Case Law Chronicle.

No. 1:15-cv-06194 23 Nov 2015 GE Transportation (Shenyang) Co., Ltd. v. A-Power Energy Generation Systems, Ltd. SDNY PAE HKIAC Energy Enforcement

Court granted preliminary injunction freezing assets of various respondents so as to preserve petitioner’s ability to collect on arbitration award rendered in its favor.

No. 15cv1175 23 Nov 2015 Jo-Gene Int’l v. 3m Co. SDNY WHP Unknown Distribution Compel arbitration

In action by Nigerian distributor, court grants motion to stay court proceedings pending arbitration, per parties’ distribution agreement.

No. 15 CIV. 7639 18 Nov 2015 Navig8 Chemicals Asia PTE, Ltd. and Navig8 Chemicals Pool, Inc. v. Crest Energy Partners, LP 3 SDNY PAE Unknown Shipping Enforcement

See fourth Case Law Chronicle.

No. 14-4599-cv 30 Oct 2015 Landmark Ventures, Inc. v. InSightec, Ltd. 2d Circ. Cabranes, Newman, Underhill ICC Financial services Enforcement

Second Circuit affirmed November 26, 2014 decision of the SDNY confirming an award and denying petition to vacate. Challenge to award had focused primarily on sole arbitrator’s decisions on evidentiary and procedural matters.

No. 15-cv-7618 30 Oct 2015 Discover Growth Fund v. 6D Glob. Techs., Inc. SDNY PKC Unknown Securities Attachment

Court considered application for attachment in aid of anticipated arbitration in the Virgin Islands. Court determined that requesting party failed to show a probability of success on the merits of any of the eleven claims it alleged, and thus did not satisfy the statutory requirements for an attachment in aid of arbitration pursuant to section 7502(c) of the New York CPLR.

No. CV-13-3885 26 Oct 2015 Griggs v. Weiner EDNY AYS AAA Unknown Supervision of Arbitral Proceedings

In an action for a declaratory judgment and permanent injunction to stop a pending arbitration concerning Mexican gaming facilities, the Court denied a motion to compel discovery.

No. 11-cv-804 21 Oct 2015 McIntire v. China Mediaexpress Holdings SDNY VM Unknown Insurance Scope of Arbitration Clause/Bankruptcy

Court determined that entities were required to seek leave of the Court prior to naming a court-appointed receiver as a respondent in a Hong Kong arbitration. In the circumstances, court-appointed receiver could not be named as respondent in the arbitration.

No. 15 Civ. 1671 18 Oct 2015 Altos Hornos De Mex., S.A.B. de C.V. v. Rock Res., Ltd. SDNY JSR ICC Unknown Enforcement

In context of motion to confirm award, the Court considered service requirements under the Hague Convention.

650342/2013 9 Oct 2015 IMAX Corp. v. Essel Group NY Supreme Scarpulla ICC Entertainment Enforcement

Award creditor sought to enforce judgment of Superior Court of Justice of Ontario, confirming an arbitral award, against alter egos of award debtor. Court denied petition for, in part, lack of personal jurisdiction.

No. 14 Civ. 08972 9 Oct 2015 Albus Denizcilik Ltd. Sti. v. Progress Bulk Carriers Ltd. SDNY GBD Unknown Maritime Enforcement

In context of enforcement of foreign arbitral award, court vacates order of attachment, finding that award debtorÍs cause of action in an unrelated case is not attachable property.

No. 12-cv-3463 8 Oct 2015 International Chartering Services, Inc. v. Eagle Bulk Shipping Inc. SDNY AJN Unknown Maritime Compel arbitration

In context of motion to compel arbitration, court considers threshold issue: whether English or federal law applies. Court concludes that ñ[t]he choice-of-law clauses control the outcome here, and Plaintiffs as non-signatories are nonetheless bound by those provisions.î Court grants motion in part, requiring further briefing on whether plaintiffs have claims independent of charterparties.

No. 13-CV-3135 6 Oct 2015 Daum Global Holdings Corp. v. Ybrant Digital Limited SDNY AJN ICC M&A Enforcement

Underlying award provided that, if award debtors failed to make timely payment, the award creditor would be entitled to receive certain shares held in escrow. In circumstances in which the value of the escrowed shares fell short of the award debtors’ monetary liability, the parties disputed whether the remedies (monetary damages, shares) were cumulative or mutually exclusive. The Court found that the remedies were cumulative, and ordered (i) payment of outstanding amount of the awards or (ii) delivery of stock certificates of sufficient value to satisfy the outstanding amount of the awards (granting request for a Turn-Over order).

No. 501415/13 5 Oct 2015 Rachel’s Children Reclamation Found., Inc. v. Elon NY Supreme Demarest Unknown Real Estate/Shareholder Scope of ADR clause

In complex corporate dispute concerning international real estate, court considers motion to dismiss on basis of, inter alia, multiple alleged arbitration clauses.

No. 14-CV-5207 29 Sep 2015 Incredible Foods Group, LLC v. Unifoods, S.A. de C.V. EDNY KAM Unknown Food and beverage Enforcement

The Court denies a motion to vacate the award.

No. 15 CV 03212 23 Sep 2015 Harbour Victoria Investment Holdings Ltd. v. Kabul Chawla and BPTP Ltd. SDNY LTS Unknown Real estate Enforcement

The Court denies an application for damages and costs is denied in its entirety.

Nos. 14_341, 14_3394 23 Sep 2015 Offshore Exploration and Production, LLC v. Morgan Stanley Private Bank, N.A. 2d Circ. Carney, Lohier, Lynch ICDR M&A Enforcement

Court considered appeals from two judgments of the district court, entered December 26, 2013, and September 12, 2014, staying certain proceedings pending arbitration and confirming two related arbitral awards. Court held that (i) in face of multiple contracts with different dispute resolution provisions, the district court did not err in ruling that the question of the arbitrability of the parties’ dispute was itself arbitrable and (ii) the two awards were sufficiently final and complete to be confirmed.

No. 14 Civ. 706 21 Sep 2015 Attia v. Audionamix, Inc. SDNY RMB ICDR Employment Enforcement

The Court vacated an ICDR award issued under a terminated employment contract. It found that the sole arbitrator excluded evidence that was both pertinent and material to the controversy, prejudicing one party’s ability to present its case.

No. 1:15-cv-06194 18 Sep 2015 GE Transportation (Shenyang) Co., Ltd. v. A-Power Energy Generation Systems, Ltd. SDNY PAE HKIAC Energy Enforcement

In the context of award enforcement proceedings, the Court granted ex parte certain temporary relief restraining the award debtor and affiliated parties from dealing with their assets pending a hearing by the Court in October 2015. Additionally, the award creditor was granted leave to conduct discovery of the debtorÍs assets in New York.

No. 14-3035 10 Sep 2015 LG Electronics, Inc. v. Wi-LAN USA, Inc.æ 2d Circ. Carney, Lohier, Lynch Unknown Intellectual property Compel arbitration

Court denied appeal from district court’s grant of motion to compel arbitration. Court held that party did not waive its right to arbitrate through conduct, including its actions in litigation. Moreover, the ‘claim splitting’ doctrine was held not to apply so as to bar arbitration of claims and issues that the parties agreed to arbitrate.

No. 15 Misc. 107 (Part I) 3 Sep 2015 Ioan Micula, et al. v. Government of Romania SDNY LGS ICSID Food and beverage Enforcement

Court denied Romania’s motion to reconsider its August 5, 2015 decision to deny Romania’s motion to vacate and/or stay judgment on the ICSID award.

No. 1:14-cv-05183 1 Sep 2015 PDV Sweeny, Inc. v. ConocoPhillips Co. SDNY AJN ICC Oil refining Enforcement

On petition to vacate award, court emphasized exclusivity of FAA grounds for vacatur (except for manifest disregard) and rejected the existence of a ‘public policy’ ground for vacatur. The court then rejected the motion to vacate, holding that the requirements of ‘manifest disregard’ doctrine were not met. Court granted cross-petition to confirm, recognize, and enforce awards.

No. 15-CV-2760 26 Aug 2015 In re: the Petition of Asia Maritime Pacific Ltd. SDNY VEC Unknown Shipping Discovery (s. 1782)

The court declined to order discovery under 28 USC s. 1782 against sixteen major NY banks on the basis that the request was a “fishing expedition.” Court also found that the requested documents dealt with opposing party’s assets (and thus its ability to satisfy the award) — rather than an issue in dispute in the foreign arbitration itself.æ

No. 15 Misc. 107 (Part I) 5 Aug 2015 Ioan Micula, et al. v. Government of Romania 2 SDNY LGS ICSID Food and beverage Enforcement

Romania moved to vacate and/or stay the court’s earlier decision to convert the ICSID award into a judgment. Motion was denied. The Commission of the European Union was granted permission to file amicus curiae brief in support of vacatur of judgment.æ

No. 15 CV 03212 31 Jul 2015 Harbour Victoria Investment Holdings Ltd. v. Kabul Chawla and BPTP Ltd. 2 SDNY LTS Unknown Real estate Enforcement

Respondents sought to recover damages and costs associated with defending enforcement proceedings in U.S. (in particular, defending against Petitioner’s unsuccessful attachment application and vacated TRO). Court awarded damages and costs, excluding attorneys’ fees.

No. 13cv7680 30 Jul 2015 Arrowood Indemnity Co. v. Equitas Insurance Ltd., Certain Underwriters at Lloyd’s of London SDNY DLC Unknown Insurance Enjoin arbitration

Award debtor challenged award in court; challenge was denied. Award debtor then started second arbitration regarding the first award and underlying contract, alleging that the prevailing party had hid evidence from the tribunal. Court enjoined the second arbitration.

No. 14-cv-9662 30 Jul 2015 In re: Petrobras Securities Litigation SDNY JSR Brazilian Market Arbitration Chamber Securities Compel arbitration

Court granted motion to dismiss certain claims on the basis of a mandatory arbitration provision in the company’s bylaws. The case presents an overview of the legal framework applying to securities arbitration in Brazil.

No. 13_CV_2237 29 Jul 2015 LG Electronics, Inc. v. Wi-LAN USA, Inc.æ 2 SDNY RA Unknown Intellectual property Compel arbitration

Court denied motion for stay, pending appeal, of execution of its earlier decision to compel arbitration. Court’s analysis included discussion of issue of waiver of right to arbitrate and of claim-splitting doctrine.

No. 14-CV-2505 24 Jul 2015 Great Wall de Venezuela C.A. v. Interaudi Bank SDNY JPO Unknown Real estate Compel arbitration

Dispute concerned sale of automobile plant in Venezuela that was allegedly subject to expropriation notice by government. Purchasers moved to compel arbitration against seller. Motion to compel arbitration is denied as moot for reasons related to application of law of interpleader/letters of credit.

No. 15 Civ. 1784 14 Jul 2015 NS United Kaiun Kaisha, Ltd. v. Cogent Fibre Inc. SDNY PAE Unknown Shipping Enforcement

Motion to vacate award in charterparty dispute that relied heavily on the dissenting opinion in antecedent arbitration. The court rejected the challenges, including manifest disregard, and confirmed the award.

No. 1:14_cv_6087 8 Jul 2015 TapImmune, Inc. v. Gardner SDNY GHW ICDR Employment Enforcement

Court enforced award and rejected motion to vacate on numerous grounds.æ

No. 14-3906-cv (Summary Order) 1 Jul 2015 VRG Linhas Aereas S/A v. Matlinpatterson Global Opportunities Partners II L.P. 2d Circ. Cabranes, Chin, Pooler ICC M&A/Aviation Enforcement

Court held that a party did not agree to the arbitration agreement in question. As a result, the Second Circuit affirmed the District Court’s decision to deny the petition to confirm the award against the non-party.

No. 15-MC-127 29 Jun 2015 In re Harbour Victoria Investment Holdings Ltd. s. 1782 Petitions SDNY AJN Unknown Real estate Post-Award Discovery (s 1782)

Award was issued in London and sought to be enforced in NY and India. Discovery previously denied with respect to certain NY assets by NY court. Award creditor then sought this information through 28 USC s. 1782 requests, allegedly in aid of foreign confirmation proceedings in India (and potentially Singapore/UK). The court denied what it called the “repackaged” evidentiary request.

No. 15 Misc. 0081 22 Jun 2015 In re Republic of Kaz. SDNY SHS SCC Energy Post-Award Discovery (s 1782)

Kazakhstan had obtained leave for discovery from law firm under 28 USC s. 1782 in order to assist its challenge of SCC award before Swedish courts in seat of arbitration. Court rejected challenge by award creditors to such discovery, holding that the statutory prerequisites of 28 U.S.C. s. 1782 had been met.æ

No. 13 Civ. 1917 3 Jun 2015 Funnekotter v. Agric. Dev. Bank of Zimb. SDNY CM ICSID Agricultural Enforcement

Court analyzed whether certain alleged agencies or representatives of Zimbabwe were alter egos/entitled to immunity with respect to enforcement of an ICSID award (the award had been enforced under 22 USC s. 1650); the alter ego issue was allowed to go to trial.

No. 152312/2014 26 May 2015 DS-Concept Trade Invest LLC v. Wear First Sportswear, Inc. Appellate Division, NY Supreme Acosta, Feinman, Manzanet-Daniels, Mazzarelli, Renwick Unknown Unknown Compel arbitration

Court held that assignee assumed assignor’s contractual obligation to arbitrate payment dispute with debtor.

No. 14-CV-5671 26 May 2015 The Rice Corp. v. Express Sea Transp. Corp. SDNY VEC LMAA Shipping Enforcement

After addressing issues related to admiralty/maritime law, the court decided that the case did not fall within its admiralty jurisdiction and therefore it lacked subject-matter jurisdiction.

No. 14-cv-8169 21 May 2015 Ogden Power Development – Cayman, Inc., Quezon Generating Company Ltd., and GPI Quezon, Ltd. v. PMR Limited Co. and PMR Power, Inc. SDNY PKC AAA Commercial Rules Construction/Energy Compel arbitration

Court concluded that reference to AAA Rules provided clear and unmistakable evidence that the parties bound by the arbitration provision intended that an arbitrator decide the issue of arbitrability. However, the court interpreted the arbitration agreement not to apply to one party, who — while a signatory to the contract — was specifically excluded from the arbitration clause. As a result, the court was entitled to decide arbitrability with respect to that party, ultimately holding that the party was expressly excluded from the arbitration provision and could not be compelled to arbitrate.

No. 1:14-cv-01561 15 May 2015 Cytec Industries, Inc. v. Allnex (Luxembourg) & Cy S.C.A. SDNY PKC GAAP M&A Scope of ADR clause

Contract contained narrow dispute resolution clause providing for CPA to resolve post-closing issue pursuant to GAAP.æ Court reviewed whether or not particular claims fell within this narrow CPA clause.

No. 1:13-cv-07680 14 May 2015 Arrowood Indemnity Co. v. Equitas Insurance Ltd., Certain Underwriters at Lloyd’s of London SDNY DLC Unknown Insurance Enforcement

Party challenged enforcement of judgment on award under FRCP Rule 60(b)(3), claiming that new documents showed that judgment enforcing award was tainted by fraud. Challenge rejected as improper and untimely ‘backdoor’ challenge to award itself.

No. 13-CV-3135 5 May 2015 Daum Global Holdings Corp. v. Ybrant Digital Limited SDNY AJN ICC M&A Enforcement

Court confirms award issued in Singapore under New York Convention, finding that none of the seven grounds for non-confirmation under the Convention is applicable.

No. 14cv8410 1 May 2015 American University of Antigua College of Medicine v. Leeward Construction Company, Ltd. SDNY DLC AAA Construction Rules Construction Enforcement

Court confirmed award and denied motion to vacate award.

No. 651305/2014 29 Apr 2015 Baosteel Res. Int’l Co. Ltd. v. Ling Li NY Supreme Singh HKIAC Unknown Compel arbitration

Court refused to dismiss case in favor of arbitration, finding that relevant contract did not contain arbitration clause (or incorporate one by reference).

No. 13_4759_cv 27 Apr 2015 Global Gold Mining, LLC v. Ayvazian 2d Circ. Jacobs, Kearse, Raggi ICC Mining Enforcement

Court reviewed grounds for vacatur of award under FAA, ultimately dismissing motion to vacate. Court’s analysis also discusses circumstances in which arbitral awards are endowed with preclusive effect.

No. 651242/2014 24 Apr 2015 Cargill Soluciones Empresariales, S.A. de C.V., SOFOM, ENR v. WPHG Mexico Operating, L.L.C. NY Supreme Kornreich Unknown Hospitality Scope of Arbitration Clause

Court rejected argument that arbitration clause in one agreement barred litigation of claims arising under separate, but related, agreement that itself provided for dispute resolution in NY courts.

No. I:15-mc-00107-P1 21 Apr 2015 Ioan Micula, et al. v. Government of Romania 3 SDNY NRB ICSID Food and beverage Enforcement

Court enforced award under 28 USC s. 1650a on an ex parte basis.

No. 650109/14 17 Apr 2015 Advanced Aerofoil Techs. AG v Missionpoint Capital Partners LLC NY Supreme Bransten ICDR Non-Disclosure Agreement Enforcement

Court allowed arbitration award to be used for collateral estoppel on fact issues by non-party to arbitration.æ

No. 116840/04 16 Apr 2015 Grynberg v. BP Exploration Operating Co. Ltd. Appellate Division, NY Supreme Acosta, Feinman, Moskowitz, Richter, Saxe Unknown Energy Supervision of Arbitral Proceedings/Consolidation

Court upheld order determining that arbitrator’s explicit failure to follow the clear directive of the court (to consider an issue on remand) warranted remand to a new arbitrator. Court also affirms consolidation of arbitrations.æ

No. 14CV4331 31 Mar 2015 Manios v. Zachariou SDNY LTS AAA Commercial Rules Estate Enforcement

Court confirmed award and denies motion to vacate award. Court’s analysis includes discussion of doctrine of ‘manifest disregard of the law.’

No. 14 Civ. 3034 16 Mar 2015 CBF IndÏstria De Gusa S.A. v. Steel Base Trade AG SDNY RWS ICC Unknown Enforcement

Court addressed issues related to corporate capacity to be sued as an award debtor under law of debtor’s incorporation, concluding that, under Swiss law, the debtor in question lacked capacity to be sued.

14-CV-3456 16 Mar 2015 Korean Trade Insurance Corp. v. Eat It Corp. EDNY MKB Korean Commercial Arbitration Board Insurance Enforcement

Unopposed motion for summary judgment to confirm award; granted.

No. 14 Civ. 8313, No. 14 Civ. 8315 12 Mar 2015 Aviation Fin. Co. Ltd. v. Chaput SDNY CM AAA Aviation Compel arbitration

Court reviewed motions to compel arbitration in several complex factual and legal situations, including analysis of scope of arbitration clause in situations with multiple inter-related contracts.æ

No. 12-cv-5754 5 Mar 2015 NYKCool A.B. v. Pacific International Services, Inc. SDNY LAK Unknown Unknown Enforcement

In context of attempt to enforce foreign arbitral award, the court addressed proper means of service of an individual in a foreign country (including a non-signatory to the arbitration agreement giving rise to the award in question).

No. 14 Civ. 8163 4 Mar 2015 Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela SDNY PAE ICSID Energy Enforcement

Court refused to modify award’s interest rate, affirming the absence of authority to review substance of ICSID awards under 22 USC s. 1650a.

14 Civ. 6412 4 Mar 2015 Hess Corp. v. Dorado Tanker Pool, Inc. SDNY NRB Unknown Shipping Enforcement

Court enforced award, concluding that there was no manifest disregard of the law of damages.

No. 13_CV_1521 2 Mar 2015 Mercury Venture International Ltd. v. DGM Commodities Corp.æ EDNY JMA Unknown Maritime Enforcement

Court adopted a ‘Report and Recommendation’ recommending that it confirm an award against one respondent, but defer payment of that award until resolution of claims against other, non-defaulting defendants.

No. 14-912-cv 24 Feb 2015 Midoil United States, LLC v. Astra Project Fin. Pty. Ltd. 2d Circ. Droney, Livingston, Pooler ICDR Energy Compel arbitration

Motion to compel arbitration; court addressed grounds on which non-signatory may be bound to arbitrate.

No. 14cv8420 20 Feb 2015 Power Partners MasTec, LLC v. Premier Power Renewable Energy, Inc. SDNY WHP Unknown Solar energy Enforcement

Court grants unopposed petition to confirm arbitration award.

No. 14 Civ. 8163 13 Feb 2015 Mobil Cerro Negro Ltd. v. Bolivarian Republic of Venezuela SDNY PAE ICSID Energy Enforcement

See second Case Law Chronicle.

No. 14 Civ. 7905 11 Feb 2015 Gould v. Japan Pulp and Paper (U.S.A.) SDNY RWS JAMS Consulting Compel arbitration

Court grants motion to compel arbitration. Certain claims arose under agreement lacking arbitration clause but that was nevertheless deemed to be “connected and collateral to” the contract containing the arbitration clause

No. 13 CV 4754 11 Feb 2015 VIP Engineering and Marketing, Ltd. v. Standard Chartered Bank SDNY VM Unknown Shareholder dispute Pre-arbitration

Prior motion to compel arbitration. In instant decision, the court considered the adequacy of Tanzania as an international litigation forum.

No. 14 Civ. 6890 6 Feb 2015 Lapina v. Men Women N.Y. Model Management Inc. SDNY RWS AAA Modeling Compel arbitration

In granting a motion to compel arbitration, the court addressed the circumstances in which a non-signatory may be compelled to arbitrate.

No. 13 Civ. 8124 30 Jan 2015 CAML Ghana Limited v. Westchester Resources Limited SDNY PAE LCIA Mining Enforcement

Court analyzed scope of post-award, party-agreed stipulation, holding that it required one party to provide the other with stipulation of discontinuance of parallel court proceedings in Ghana against certain parties.

No. 13-CV-5356 29 Jan 2015 T-Jat Systems 2006 Ltd. v. Amdocs Software Systems Limited SDNY JMF Unknown Software Enforcement

Court confirmed award over motion to vacate. Analysis includes discussion and rejection of alleged manifest disregard of the applicable law.

No. 14 Civ. 2295 28 Jan 2015 Edese Doret Industrial Design, Inc. v. Avn Solutions, Inc. SDNY AT AAA Aviation Compel arbitration

Action before court stayed under FAA (9 U.S.C. s 3) pending outcome of arbitration proceedings.

No. 1:14-cv-2149 26 Jan 2015 Cessna Finance Corporation v. Gulf Jet LLC SDNY ALC ICC Aviation Enforcement

Unopposed motion for summary judgment to confirm award; granted.

No. 651617/14 22 Jan 2015 Rockwood Pigments NA, Inc. v. Elementis Chromium LP Appellate Division, NY Supreme Acosta, and Clark, Friedman, Moskowitz, Richter AAA Distribution Enjoin arbitration

Petition under CPLR 7502(c) to enjoin one party from terminating the distribution agreement pending arbitration. Petition was granted by the Supreme Court and was upheld on appeal.

No. 13-4825-cv 14 Jan 2015 Citigroup, Inc. v. Abu Dhabi Investment Authority 2d Circ. Hall, Lynch, Wesley AAA M&A/Banking Compel arbitration

See first Case Law Chronicle.

No. 13-cv-5790 12 Jan 2015 Atlantica Holdings, Inc. et al. v. BTA Bank JSC SDNY JMF Unknown Securities Compel arbitration

Court held that non-signatories did not clearly and unmistakably agree that the arbitrator shall decide the question of arbitrability. As such, arbitrability was for the court to decide.æ

Nos. 14-cv-6633 and 14-cv-6675 12 Jan 2015 McKenna Long & Aldridge, LLP, et al. v. Ironshore Specialty Insurance Company; and Vincent W. Sedmak v. Ironshore Specialty Insurance Company (captioned together) SDNY KBF ICDR Insurance Compel arbitration

Court held that, in absence of evidence of a clear and unmistakable agreement to arbitrate by two non-signatories, the question of arbitrability in these matters was therefore for judicial determination. After canvassing various theories by which non-signatories may be compelled to arbitrate, the court denied the non-signatories’ motions for summary judgment seeking to enjoin a pending arbitration brought against them.æ

No. 14-cv-9432 6 Jan 2015 Robert Bosch GmbH and Robert Bosch (France) S.A.S. v. Honeywell International Inc. SDNY PKC Unknown M&A Enforcement

In the context of a petition to confirm an arbitral award, the court considered one party’s motion to seal “the entire record in this proceeding, except for the Court’s opinions and orders.” In spite of the parties’ confidentiality agreement, the Court denied the application to seal the petition, and any submissions in support or opposition to the petition, citing public interest in public justice.