Transnational Notes

I.                    Introduction

In Corporación Mexicana de Mantenimiento Integral (“COMMISA”) v. Pemex-Exploración y Producción (“PEP”)[1] (Pemex) decided in August of last year, the District Court for the Southern District Court took what I described elsewhere as “an important step in the right direction”[2] by granting enforcement to an award vacated by the courts of the seat (Mexico in that case). In Thai-Lao Lignite (Thailand) Co Ltd & Hongsa Lignite (Lao Pdr) Co., Ltd v Government of the Lao People’s Democratic Republic,[3] decided barely four months later, the same court at first sight seems to have gone in the opposite direction by deferring to the annulment decision of the courts of the seat in Malaysia.

This post will analyze the Thai-Lao Lignite decision and show that the different outcome in the two cases is explained by the substantial differences in the facts.

II.                  The background

Thai-Lao Lignite is the most recent development in a complex litigation spanning across three continents.  It deals with the enforcement of an arbitral award rendered in an arbitration seated in Kuala Lumpur, Malaysia. The arbitration arose from a project development agreement providing for certain mining and operation rights (PDA) between the Government of Laos and the two companies that eventually became the petitioners in the enforcement proceedings before the District Court. The companies brought claims for improper termination and damages, which were upheld by the arbitrators, after rejection of the Government’s objections to jurisdiction.

In 2011 the award was confirmed by the District Court for the S.D.N.Y., whose decision was affirmed by the Second Circuit Court of Appeals.[4] In support of its motion to dismiss the petition for enforcement the award debtor contended, inter alia, that the arbitrators had exceeded their jurisdiction by extending it to other agreements and to non-signatories of the PDA. As discussed in Section IV below, these objections were rejected.

The award was also declared enforceable in England by the High Court of Justice, which relied on the US Court’s decision.[5] The English court held that the award debtor’s objections to jurisdiction had all been decided by the US courts and raised matters of issue estoppel. On that basis it decided that the award was to be regarded as “manifestly valid”.[6]

Enforcement was, instead, denied by the Paris Court of Appeal on grounds of excess of jurisdiction, because the arbitrators awarded compensation for losses related to a contract other than the one containing the arbitration clause.[7]

After the award had been enforced in the US, the Government of Laos brought a successful challenge before the Malaysian High Court, whose decision was affirmed by the Malaysian Court of Appeal. As recounted in the District Court’s decision under review here,[8] the ground for the annulment was the provision on excess of jurisdiction of the Malaysian Arbitration Act of 2005. The High Court held that the arbitrators had erred in assuming jurisdiction over two contracts entered into before the PDA and in admitting and adjudicating claims by non-parties to that agreement.

Following the setting aside of the award in Malaysia, the Government of Laos filed with the District Court for the S.D.N.Y a motion for relief from that court’s earlier judgment granting enforcement[9] pursuant to Federal Rule of Civil Procedure 60(b)(5)[10] and Article V(1)(e) of the New York Convention. The motion was granted by the District Court and the award is therefore no longer enforceable in the United States.

III.                The District Court’s Opinion

Wood J.’s Opinion first sets out what it considers to be the guiding principles for the exercise of the discretion to enforce a foreign arbitral award annulled at the seat, which derives from the “permissive ‘may’ in Article (V)(1)(e) of the New York Convention”.[11]

To do this, it analyzes the US case law on the enforcement of awards set aside at the seat, and in particular Chromalloy[12], Baker Marine,[13] TermoRio[14] and Pemex.[15] The Opinion reiterates the adages that the New York Convention “provides for a carefully crafted framework for the enforcement of international arbitral awards”[16] and that “Under the Convention, ‘the country in which, or under the [arbitration] law of which, [an] award was made’ is said to have primary jurisdiction over the arbitration award. All other signatory States are secondary jurisdictions …”.[17]

The District Court notes that “[i]n Baker Marine, the Second Circuit Court of Appeals held that where a court with primary jurisdiction over an arbitral award issues a decision setting aside the award, US courts will honor that decision in the absence of an ‘adequate reason’ not to do so”. It also refers extensively to TermoRio, which held that “normally a court sitting in secondary jurisdiction should not enforce an arbitral award vacated by a court with primary jurisdiction over the award, but that there are certain circumstances in which doing so may be appropriate”.[18] The discretion to refuse enforcement “is narrowly confined” and may be exercised only when the foreign judgment setting aside the award is “repugnant to fundamental notions of what is decent and just in the State where enforcement is sought” or violates “basic notions of justice”.[19] That “standard is high and infrequently met” and should be found “[o]nly in clearcut cases.”[20]

Wood J. concludes her survey of precedents citing Pemex’s approval of the TermoRio standard and its finding that the Mexican annulment decision in that case “violated basic notions of justice in that it applied a law that was not in existence at the time the parties‘ contract was formed and left Commisa without an apparent ability to litigate its claims.”[21]

The Court then proceeds to determine whether the extraordinary circumstances envisioned in TermoRio were met in the case at bar and concludes that, unlike in Pemex, they were not.

The analysis turns on whether the Malaysian proceedings or the judgments of the Malaysian courts violated basic notions of justice, so as to lead to ignore comity considerations and to disregard the Malaysian judgments.

The petitioners relied on a variety of arguments of questionable relevance. In particular they contended that the Respondent had acted inequitably in the enforcement proceedings before the US courts; that in challenging the award it had violated a covenant to abide by it; that the Malaysian Court of Appeal excused the Respondent’s initial failure to file its action within the proper deadline; that the Malaysian High Court wrongly held that the Respondent had properly objected to the arbitral tribunal’s jurisdiction and had not waived its jurisdictional objection; and that it failed to accord res judicata effect to the decisions of the US courts upholding the award.

The District Court is quick to point to the lack of substance of each one of the arguments. It notes amongst others that the petitioners’ criticisms of the Malaysian court’s decision “at best show weakness in the […] legal reasoning”, but ultimately fail to demonstrate that the judgments violated basic notions of justice. Predictably, the District Court also holds that the Malaysian courts had no obligation to grant preclusive effect to the enforcement decisions of the US courts, since such decisions are not truly decisions on the merits, but simply orders to enforce an award which are not necessarily res judicata in foreign jurisdictions.[22]

In light of these findings the District Court concludes that the circumstances at hand “simply do not amount to the extraordinary circumstances contemplated in TermoRio.”[23] In support of this conclusion it notes that the award brought for enforcement in this case had been rendered in a neutral country and did not involve an entity of the State of the seat, unlike in Pemex. It observes further that, again unlike Pemex, there was no retroactive application of a prohibition on arbitration and the private party was not left without remedy following the annulment.[24]

As Wood J. sums it up, the annulment of the award at the Malaysian seat was based on the “universally recognized ground” that the arbitrators had exceeded their jurisdiction.

IV.                Thai-Lao Lignite and Pemex compared

The outcome of Thai-Lai Lignite is the opposite of that of Pemex. While in Pemex the foreign award annulled at the seat was nonetheless confirmed by the District Court for the S.D.N.Y, in Thai-Lao Lignite the same court deferred to the foreign annulment. The foregoing summary makes it sufficiently clear that the reason for the dissimilar outcomes lies in the differences in the facts.

In Pemex the Mexican courts’ judgments were unquestionably tainted by a serious flaw, since they applied a retroactive prohibition on arbitrability. There was also a strong suspicion of political motivation, given that the award debtor was the largest and most powerful state entity of the seat. In that case it was difficult to contest that basic notions of justice had been violated. In Thai-Lao Lignite, instead, the crux was excess of jurisdiction by the arbitrators which, as the District Court remarks, is a universally recognized ground for setting aside awards. It is interesting that also the French courts, notoriously prone to enforce awards annulled at the seat,[25] refused enforcement on the same grounds.[26]

Thai-Lao Lignite does not, therefore, signal a departure from the standard laid down in TermoRio and applied in Pemex.

There is, however, one interesting peculiarity in Thai-Lao Lignite. Although the ground for annulment in Malaysia was excess of jurisdiction, the District Court does not address that issue in any detail. It simply remarks that, as mentioned above, the Malaysian High Court decided that the arbitrators exceeded their jurisdiction under the PDA by deciding over disputes concerning two contracts entered into by the parties prior to the PDA and by admitting claims by non-parties to the PDA.

As note previously, precisely this point had been addressed at great length in the District Court’s Opinion of August 3, 2011, which confirmed the award prior to its annulment. [27] On the first prong of the objection relating to the arbitrators’ alleged decision on matters not arising from the PDA, the Court held that the issues characterized by the Respondent as jurisdictional issues were, “at their core, not issues of arbitrability or jurisdiction at all”. Indeed, the target of the Respondents’ objections was the way in which “the Panel calculated damages and interpreted the PDA, both of which are well outside the scope of what the Court may review on petition to confirm an award under the Convention”. The arbitrators’ decision “simply reflects the Panel’s interpretation of the breadth of the term ‘total investment costs’ in the PDA, and not an extension of jurisdiction over other contracts”. On the second prong, relating to the standing of a non-party to the PDA, the District Court found that, insofar as it “concerns issues of arbitrability, […] the parties delegated decision on these issues to the Panel. Thus the Court defers to the Panel’s decision on such issues”. The Court held that, by agreeing to arbitration under the UNCITRAL Rules, the parties had also agreed to the jurisdiction of the arbitrators to decide on jurisdiction. It therefore refused to address the issue de novo and deferred to the arbitrators’ decision.

It is beyond the scope of this post to analyze these findings. It is, however, puzzling that, in the District Court’s latest decision, almost no attention was given to the contrast between the Malaysian courts’ decision on jurisdiction and the District Court’s earlier decision in the enforcement proceedings, notwithstanding that it dealt with what appears to have been an almost identical objection in the two proceedings. In the latest decision the District Court touches on the point only obliquely, where it addresses the Petitioners’ complaint that the Malaysian High Court failed to give preclusive effect to the US courts’ rulings on arbitral jurisdiction. Framed in this way it is not unsurprising that the Petitioners’ argument was given short shrift by the Court. It is difficult to imagine that the court of the seat would give res judicata effect to a foreign decision enforcing an award.

At least in the abstract, it would seem that the contrast between the foreign annulment judgment and the District Court’s own earlier decision (which had moreover been affirmed by the Court of Appeals) could have been more cogently invoked in the opposite sense. In other words, the argument could have been made that, regardless of its merits, the foreign annulment judgment could not be deferred to because of the conflict with a judgment of the forum having decided precisely the same issues.

The reason why that point was not addressed by the District Court probably lies in the relevant rules of civil procedure, that I am not qualified to discuss. It might have to do with the nature of the District Court’s earlier decision, which was “merely” a decision on enforcement and with the peculiarities of the procedure for relief from the enforcement judgment under Federal Rule of Civil Procedure 60(b)(5).

Nonetheless, it is somewhat surprising that the District Court seems not even to have blinked at the prospect of refusing to enforce an award it had previously decided to be enforceable. What is even more surprising is that, in so doing, it accepted to defer to a foreign judgment that collides frontally with its own. Admittedly, the conflict between the Malaysian judgment and the District Court’s own previous judgment turns on a delicate matter, i.e. the de novo review of the arbitrators’ decision on jurisdiction.[28] This is an issue on which positions differ, and the District Court’s view on which was not necessarily the only tenable one. Nonetheless, the District Court’s complete failure to address this conflict seems to underscore an engrained conviction that the foreign annulment judgment is almost entirely dispositive of the award’s fate, regardless of the enforcement forum’s own views on its validity. A more explicit treatment of this point would have provided food for interesting reflections on the law and policies involved in the enforcement of annulled awards.

V.                  Conclusion

Thai-Lao Lignite does not indicate a backtracking by the District Court for the Southern District of New York from the position that, in some circumstances, annulled awards can be enforced in the United States, that it adopted in Pemex. In this case, the refusal to enforce the award annulled by the Malaysian courts is easily explained by the fact that the circumstances of the foreign annulment were not as serious and prima facie objectionable as in Pemex.

Thai-Lao Lignite displays the same timid and conservative approach to the enforcement of awards annulled at the seat that characterized Pemex, with the additional peculiarity that it fails even to touch upon the contrast between the foreign annulment judgment and a decision of the forum where enforcement is sought. Upon reading the District Court’s decisions one feels the need for further analysis of the legal and policy approaches to this matter, which has significant broader implications.[29]

Luca G. Radicati di Brozolo

The author was Scholar in Residence at the Center for Transnational Litigation, Arbitration and Commercial Law in February 2014. He is a Professor of Private International Law at the Catholic University of Milan and a founding  partner of Arblit – Radicati di Brozolo Sabatini, Milan. He is a member of the ICC International Court of Arbitration, Vice-Chair of the IBA Arbitration Committee and a door tenant of Fountain Court Chambers, London. Email: Luca.Radicati@arblit.com

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