Justia Arbitration & Mediation Opinion Summaries

An investment treaty between the U.K. and Argentina authorizes a party to submit a dispute to “the competent tribunal of the Contracting Party in whose territory the investment was made,” and permits arbitration if, 18 months after such submission, the tribunal has not made a final decision. BG, a British firm, had an interest in MetroGAS, an Argentine entity licensed to distribute natural gas in Buenos Aires. At the time of BG’s investment, Argentine law provided that gas tariffs would be calculated in U.S. dollars and would be set at levels sufficient to assure gas distribution firms a reasonable return. Argentina later changed the calculation basis to pesos. Profits became losses. BG sought arbitration, which was conducted in Washington, D. C. BG claimed that Argentina had violated the Treaty, which forbids expropriation of investments and requires each nation to give investors fair and equitable treatment. Argentina denied the claims and argued that the arbitrators lacked jurisdiction because BG had not complied with the local litigation requirement. The arbitration panel concluded that Argentina’s enactment of laws that hindered recourse to its judiciary excused compliance and that Argentina had not expropriated BG’s investment but had denied fair and equitable treatment. The district court confirmed the award. The District of Columbia Circuit vacated, holding that the arbitrators lacked jurisdiction. The Supreme Court reversed. The local litigation requirement was a matter for arbitrators to interpret and apply; courts should review that interpretation with deference. Courts presume that the parties intended arbitrators to decide disputes about application of procedural preconditions to arbitration, including claims of waiver, delay, defense to arbitrability, time limits, notice, laches, or estoppel. The provision is procedural; it determines when the contractual duty to arbitrate arises, not whether there is a duty to arbitrate. It is a claims-processing rule. The fact that contract is a treaty does not make a difference. The Treaty contains no evidence that the parties had intentions contrary to the ordinary presumptions about who should decide threshold arbitration issues. View "BG Group plc v. Republic of Argentina" on Justia Law

This appeal arose from an order of the district court denying Argentina's motion to dismiss a petition to confirm an arbitration award filed by Blue Ridge on foreign immunity grounds. The court held that it had jurisdiction to consider the district court's rejection of Argentina's assertion of foreign immunity under the collateral order doctrine; the court declined to exercise appellate jurisdiction to consider whether the district court erred in concluding that Blue Ridge, as an assignee, could state a claim to confirm the International Centre for the Settlement of Investment Disputes award because that issue was not "inextricably intertwined" with the district court's foreign sovereign immunity decision; the district court correctly concluded that Argentina waived its foreign sovereign immunity pursuant to two separate and independent exceptions to the immunity from suit provided by the Foreign Sovereign Immunities Act: the implied waiver exception and the arbitral award exception, 28 U.S.C. 1605(a)(1), (2), and (a)(6). Accordingly, the court affirmed insofar as the district court concluded that Argentina waived its foreign sovereign immunity and remanded for further proceedings. View "Blue Ridge Investments, L.L.C. v. Republic of Argentina" on Justia Law

After receiving an arbitral award against MatlinPatterson, VRG filed a petition in the district court seeking confirmation of the award in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), 9 U.S.C. 201-08. On appeal, VRG argued that the district court usurped the Arbitral Tribunal's role when it decided that the scope of the parties' arbitration agreement - assuming there was one - did not extend to the dispute at hand. The court vacated the district court's judgment and remanded so that it could decide, in the first instance and on the particular facts of this case, who - the court or the Arbitral Tribunal - had the power to determine the scope of the alleged arbitration agreement between VRG and MatlinPatterson. This power - to determine the scope of any agreement to arbitrate - was to remain with the district court unless the parties agreed to an arbitration clause that clearly and unmistakably assigned such questions to arbitration. View "VRG Linhas Aereas S.A. v. MatlinPatterson Global Opportunities Partners II L.P." on Justia Law

In 1985, Behringwerke filed a U.S. patent application directed to the use of DNA sequences (enhancers) identified in human cytomegalovirus. An enhancer, when introduced into a cell that produces a drug, can enable the cell to produce the drug at a much higher rate. In 1992, Behringwerke and Genentech entered into a licensing agreement related to enhancers that matured into the patents-in-suit; for fixed annual payments, Genentech could practice the patents for research purposes. Genentech was to pay a royalty on sales of commercially marketable goods incorporating a “Licensed Product.” The Agreement, governed by German law, required that disputes be settled by arbitration. Behringwerke sold its pharmaceutical business to Sanofi, but the Agreement and patent rights stayed with Hoechst; both are German entities. In 2008, Sanofi sued Genentech for infringement based on sales of the allegedly infringing drugs Rituxan and Avastin, which Genentech had not identified as licensed products. Hoechst demanded arbitration before a European arbitrator. The district court found no infringement. The Federal Circuit affirmed. Arbitration continued. On remand, Genentech sought to enjoin Sanofi from continuing the foreign arbitration. The district court denied the motion, finding that Hoechst is a party to the arbitration, but not a party to the litigation and that an injunction would frustrate policies favoring enforcement of forum selection clauses, and would not be in the interest of international comity. The arbitrator determined that German substantive law, not U.S. patent law, would be used, that a drug could be a licensed article even though it did not contain the patented enhancers, if those enhancers were used in its manufacture, and that Genentech was liable for damages. The Federal Circuit affirmed that Genentech was not entitled to an injunction. View "Sanofi-Aventis Deutschland, GMBH v. Genentech, Inc." on Justia Law

Johnson Controls, a Wisconsin manufacturer of building management systems and HVAC equipment, and Edman Controls entered into an agreement giving Edman exclusive rights to distribute Johnson’s products in Panama. In 2009, Johnson breached the agreement by attempting to sell its products directly to Panamanian developers, circumventing Edman. Edman invoked the agreement’s arbitration clause. The arbitrator concluded that Johnson had breached the agreement and that Edman was entitled to damages. Johnson sought to vacate or modify the arbitral award, challenging the way in which the award took account of injuries to Edman’s subsidiaries and the arbitrator’s alleged refusal to follow Wisconsin law. The district court ruled in Edman’s favor. The Seventh Circuit affirmed and upheld the district court’s award of attorney fees. View "Johnson Controls, Inc. v. Edman Controls, Inc." on Justia Law

Germany and Thailand signed a treaty, providing that disputes concerning investments between Germany or Thailand and an investor of the other party may be resolved by arbitration at the request of either party. The treaty applies to “approved investments” made before the treaty by investors of either country in the territory of the other. Bau initiated arbitration, claiming that Thailand had interfered with investments made, 1989-1997, in a Thai tollway project. An arbitration tribunal convened under agreed terms, which empowered the tribunal to consider objections to jurisdiction and provided that U.N. Commission on International Trade Law Arbitration Rules would apply. Thailand objected to jurisdiction on the ground that Bau’s were not “approved investments” because Bau never obtained a “Certificate of Admission” from Thailand’s Ministry of Foreign Affairs. Bau responded that the project was comprised of “approved investments” because Bau was invited to make the investments by the Thai Council of Ministers, which approved the project at various stages, and because the Thai Board of Investment issued certificates of investment for the project. The tribunal held that it had jurisdiction and made an award in favor of Bau. The district court confirmed. The Second Circuit affirmed, rejecting an argument that the court should have independently adjudicated jurisdiction instead of performing deferential review.View "Schneider v. Kingdom of Thailand" on Justia Law

CS manufactures and sells X-ray and metal detection devices for use in public facilities around the world. Tecapro is a private, state-owned company that was formed by the Vietnamese government to advanced technologies into the Vietnamese market. In 2010, Tecapro purchased 28 customized AutoClear X-ray machines from CS for $1,021,156. The contract provides that disputes shall be settled at International Arbitration Center of European countries for claim in the suing party’s country under the rule of the Center. Tecapro initiated arbitration proceedings in Belgium in November 2010. In December 2010, CS notified Tecapro of its intention to commence arbitration proceedings in New Jersey. In January 2011, CS filed its petition to compel arbitration in New Jersey and enjoin Tecapro from proceeding with arbitration in Belgium. The district court concluded that it had subject matter jurisdiction under the U.N.Convention on the Recognition and Enforcement of Foreign Arbitral Awards, that it had personal jurisdiction over Tecapro, and that Tecapro could have sought to arbitrate in Vietnam and CS in New Jersey. The latter is what happened, so “the arbitration shall proceed in New Jersey.” After determining that it had jurisdiction under the Federal Arbitration Act, 9 U.S.C. 1, the Third Circuit affirmed. View "Control Screening LLC v. Technological Application & Prod. Co." on Justia Law

This appeal concerned the Eleventh Circuit's authority to review an order remanding an action based on an antecedent and erroneous ruling that an agreement to arbitrate was unenforceable. Petitioner St. Hugh Williams filed in a Florida court a complaint that, while working onboard the M/V Norwegian Sky, he was injured as a result of the negligence and other tortious conduct of the owner of the ship, NCL (Bahamas) Ltd. NCL removed the action to the district court on the ground that Petitioner was contractually bound to arbitrate his complaint under the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, but Petitioner moved to remand the action to state court. The district court ruled that the arbitration clause was unenforceable and granted Petitioner's motion to remand. NCL appealed, and the Eleventh Circuit later held in "Lindo v. NCL (Bahamas) Ltd.," (652 F.3d 1257 (11th Cir. 2011)), that an agreement to arbitrate under the Convention is enforceable. Petitioner argued that the Eleventh Circuit lacked jurisdiction, but the Court found that it had jurisdiction to review the denial of the motion to compel under "City of Waco v. U.S. Fidelity & Guaranty Co.," (293 U.S. 140 (1934)). The Court reversed the order denying the motion to compel of NCL, vacated the order remanding Petitioner's complaint to state court, and remanded the case with instructions to compel arbitration. View "Williams v. NCL (Bahamas) Ltd." on Justia Law

This case arose from a foreign shipping contract billing dispute between Consorcio Ecuatoriano de Telecomunicaciones S.A. (CONECEL) and Jet Air Service Equador S.A. (JASE). CONECEL filed an application in the Southern District of Florida under 28 U.S.C. 1782 to obtain discovery for use in foreign proceedings in Ecuador. According to CONECEL, the foreign proceedings included both a pending arbitration brought by JASE against CONECEL for nonpayment under the contract, and contemplated civil and private criminal suits CONECEL might bring against two of its former employees who, CONECEL claims, may have violated Ecuador's collusion laws in connection with processing and approving JASE's allegedly inflated invoices. CONECEL's application sought discovery from JASE's United States counterpart, JAS Forwarding (USA), Inc. (JAS USA), which does business in Miami and was involved in the invoicing operations at issue in the dispute. The district court granted the application and authorized CONECEL to issue a subpoena. Thereafter, JASE intervened and moved to quash the subpoena and vacate the order granting the application. The district court denied the motion, as well as a subsequent motion for reconsideration. JASE appealed the denial of both. After thorough review and having had the benefit of oral argument, the Eleventh Circuit affirmed the orders of the district court. the Court concluded that the panel before which which JASE and CONECEL's dispute was pending acts as a first-instance decisionmaker; it permits the gathering and submission of evidence; it resolves the dispute; it issues a binding order; and its order is subject to judicial review. The discovery statute requires nothing more. The Court also held that the district court did not abuse its considerable discretion in granting the section 1782 discovery application over JASE's objections that it would be forced to produce proprietary and confidential information. The application was narrowly tailored and primarily requested information concerning JASE's billing of CONECEL, which was undeniably at issue in the current dispute between the parties." Finally, the district court did not abuse its discretion in denying JASE's motion for reconsideration. View "In re: Application of Consorcio Ecuatoriano" on Justia Law

GSS Group brought this action to confirm a foreign arbitration award against the Port Authority of Liberia. The district court dismissed the petition for lack of personal jurisdiction after concluding that the Port Authority did not have sufficient contacts with the United States. The court concluded that the Port Authority claimed to be an independent juridical entity in its motion to dismiss, and GSS Group failed to contest that characterization. GSS Group's omission left in tact the Bancec presumption, First National City Bank v. Banco Para el Comercio Exterior de Cuba, which, under TMR Energy v. State Property Fund of Ukraine, guaranteed the Port Authority treatment as a separate "person" entitled to due process protection. That protection included the right to assert a minimum contacts defense. GSS Group had not identified any connection between the Port Authority and the United States and conceded that none existed. Therefore, the district court correctly dismissed the petition for lack of personal jurisdiction. View "GSS Group Ltd v. National Port Authority" on Justia Law