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Confirmation / Vacation of Arbitration Awards

Texas Federal Court Enforces Arbitration Award Under the New York Convention Despite Jurisdictional Challenge

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Respondent argued against the confirmation of the arbitral award as it was based upon the consent of the parties, rather than a disputed hearing, which it contended made the award not subject to the New York Convention, resulting in a lack of jurisdiction.  The Court disagreed that it lacked subject matter jurisdiction, citing to Albtelecom SH.A. v. UNIFI Commc’ns, Inc., 2017 WL 2364365 (S.D.N.Y. May 30, 2017). The court noted that “[w]hile the tribunal did not make findings or reach legal conclusions, it made an award that bound parties, with its power.  No binding or persuasive statutory language or case law requires a court to hold that a tribunal must reach its own conclusions, separate from the parties’ agreement, to make a valid binding award subject to the Convention.”

As Respondent did not argue that the award should not be confirmed on any ground but lack of subject-matter jurisdiction, the Court found the award must be confirmed.

Transocean Offshore Gulf of Guinea VII Ltd., et al. v. Erin Energy Corp., No. H-17-2623 (USDC S.D. Tex. Mar. 12, 2018)

This post written by Nora A. Valenza-Frost.
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Court of Appeal of England and Wales Finds That Party’s Forgery of Documents in Connection with a Transaction Does Not Bar Confirmation of Arbitration Award

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The Court of Appeal of England and Wales has rejected a challenge to an arbitration award issued by the China International Trade Arbitration Commission (the “Tribunal”) against RBRG Trading (UK) Limited in favor of Sinocore International Co. Ltd., despite an argument from RBRG that the award was contrary to public policy.

The matter arose from Sinocore’s agreement to sell steel to RBRG. The parties later amended the contract to give RBRG a right to inspect the steel, and RBRG claimed that the parties agreed to amend a letter of credit issued by a Dutch bank in connection to the transaction to change the shipping date to July 20 and 30, 2010. Sinocore then shipped the steel on July 7, 2010, a fact of which RBRG was informed, but presented bills of lading that falsely gave the date of July 20-21, 2010 to the bank. The bank refused to pay due to the fraudulent bills of lading, and Sinocore terminated the contract and sold the steel to a third party. RBRG then commenced the arbitration, claiming that Sinocore had breached the agreement to allow RBRG to inspect the steel by shipping it too soon, and Sinocore counterclaimed for damages related to the termination of the contract.

The Tribunal determined that RBRG had not asked to inspect the steel and had been timely notified of its shipment and thus could not claim damages from Sinocore’s failure to allow an inspection. The tribunal further determined that RBRG had breached the contract by instructing the bank to issue the amended letter of credit, an amendment to which Sinocore had not agreed. The Tribunal further determined that that forgery of the bills of lading had not harmed RBRG and had not been the cause of the termination of the agreement, which instead resulted from RBRG’s instruction to issue the non-conforming letter of credit.

When Sinocore attempted to enforce the award in the United Kingdom, RBRG argued that it should not be enforced because it was based on Sinocore’s forgery of bills of lading, and that it was contrary to public policy to assist a seller who present forged documents under a letter of credit. The court disagreed, however, and emphasized the importance both of enforcing arbitral awards and of strictly construing the exception for awards that violate public policy. Ultimately, relying in part on the Tribunal’s determination that RBRG’s conduct caused the contract to terminate, the court found that the connection between the forged bills of lading and the award was simply too weak to justify a departure from the general rule that arbitral awards should be enforced.

RBRG Trading (UK) Limited v. Sinocore International Co. Ltd., [2018] EWCA (Civ) 838

This post written by Jason Brost.

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Decade-Long Battle Between Policyholder, Reinsurer, And Retrocessionaire To Continue As Reinsurer Files Notice Of Appeal

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A Brazilian mining and steelmaking company (Companhia Siderurgica Nacional, S.A. (“CSN”)), a Brazilian insurance company (IRB Brazil Resseguros, S.A. (“IRB”)), and an American insurance company (National Indemnity Company (“NICO”)) have been locked in battle for a decade over liability stemming from a $167 million loss suffered by CSN. We have previously written about this litigation here.

On January 23rd, the Southern District of New York ordered IRB to pay NICO $5 million pursuant to an arbitration award. On February 22, 2018 IRB appealed this order to the Second Circuit. On March 26th a $5.55 million supersedeas bond was filed with the court on behalf of IRB to stay execution of the order pending the outcome of the appeal. National Indemnity Co. v. IRB Brazil Resseguros, S.A., No. 15-CV-3975 (USDC S.D.N.Y. Feb. 22, 2018 & March 26, 2018).

This post written by Benjamin E. Stearns.
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Arbitrator’s Decision Not Based On Manifest Disregard Of The Law, But Challenge To That Decision Was Not So Meritless As To Warrant Sanctions

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Jonathan Kessler brought a claim in arbitration against his former employer, Kent Building Services, after he was fired from his job as Kent’s president, asserting that he had not been fired for cause and was thus owed severance. The arbitrator determined that Kent breached Kessler’s contract by firing him without cause, a decision the arbitrator found was arbitrary and irrational and thus a breach of the implied covenant of good faith and fair dealing, and thus awarded him six month’s severance pay.

Kent challenged this award in federal court, arguing that the arbitrator’s decision on good faith and fair dealing demonstrated a manifest disregard of New York contract law. Kent based this argument on a New York trial court decision holding that termination of employment only breaches the implied covenant of good faith and fair dealing if it results from a “constitutionally impermissible purpose or [violates] statutory or decisional law,” something not shown during the arbitration. The court rejected this argument, finding that other case law makes it clear that unconstitutionality or illegality are “sufficient but not necessary” to support a claim based on the breach of the implied covenant of good faith and fair dealing. Further, the court found that the arbitrator applied the correct law in finding that Kent had discretion regarding whether to fire Kessler and that the irrational exercise of this discretion could support a breach of the implied covenant of good faith and fair dealing. The court therefore found that the arbitrator had not acted in manifest disregard of the law.

However, the court rejected Kessler’s motion for sanctions under 28 U.S.C. § 1927 for filing a meritless petition to vacate. While the court disagreed with Kent’s argument regarding the requirements of good faith and fair dealing claims under New York law, it found that making argument was not unreasonable. Kessler had also argued that Kent had acted in bad faith when it included in its petition allegations of numerous failures by Kessler in his job performance while failing to mention that the arbitrator had specifically found that these failures were not the basis for Kent’s decision to fire Kessler. The court found that this should be interpreted as simply an attempt by Kent “to provide greater context for the parties’ employment dispute,” rather than a bad faith attempt to mislead the court. Finding no frivolous argument and no bad faith, the court declined to award sanctions.

Kent Building Services, LLC v. Kessler, 17-CV-3509 (JPO) (S.D.N.Y. Mar. 14, 2018)

This post written by Jason Brost.

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Court Vacates Arbitration Award In Crop Insurance Dispute That Awarded Remedies Preempted By Federal Law

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The plaintiff, a farming company, demanded arbitration against Diversified Crop Insurance Services over the nonpayment of federally reinsured claims. The plaintiff brought several claims under policies it had purchased from Diversified, to which Diversified denied coverage, due to a misstatement of the farm’s location and a separate clerical omission as to the number of acres covered, both of which were allegedly errors committed by Diversified’s agent. The arbitrator found for the plaintiff and trebled damages against Diversified.

When the plaintiff moved to confirm the award, the court considered whether the arbitrator exceeded her authority by basing her decision on extra-contractual state law remedies, which are preempted by federal law associated with Diversified’s reinsurance coverage from the Federal Crop Insurance Corporation. The court found that the arbitrator did exceed her authority by finding that “the farm was uninsured, and therefore not covered by the policy, yet award[ing] damages in negligence, breach of fiduciary duty, and constructive fraud because she attributed the lack of coverage to Diversified and its agents.” The court found further evidence of the arbitrator’s exceeding the scope of her authority in the fact that she trebled the awards under North Carolina’s Unfair and Deceptive Trade Practices Act. As such, the court vacated the award. Williamson Farm v. Diversified Crop Insurance Services, Case No. 5:17-CV-513-D (USDC E.D.N.C. Mar. 26, 2018).

This post written by Gail Jankowski.

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