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UNITED STATES 1061
United States District Court, Southern District of New York, 13 January 2023, 13-cv-2581 (PKC) (JLC)
(CBF Indústria De Gusa S/A, Da Terra ... Read more
United States District Court, Southern District of New York, 13 January 2023, 13-cv-2581 (PKC) (JLC)
(CBF Indústria De Gusa S/A, Da Terra Siderúrgica Ltda, Fergumar - Ferro Gusa Do Maranhão Ltda, Ferguminas Siderúrgica Ltda, Gusa Nordeste S/A, Sidepar - Siderúrgica Do Pará S/A and Siderúrgica União S/A v. AMCI Holdings, Inc., American Metals & Coal International, Inc., Prime Carbon GmbH, Primetrade, Inc. and Hans Mende)
UNITED STATES 1061
The Court held that the defendants failed to prove that the arbitration defendant had been under an incapacity under the applicable Swiss law because of its bankruptcy and had been unable to defend itself in the arbitration. The fact that, following bankruptcy, the right to speak for the arbitration defendant had been vested by operation of law in a bankruptcy administrator did not mean that the arbitration defendant itself had been under an incapacity or otherwise could not present a case.
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.