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UNITED STATES 1040
United States District Court, Southern District of Florida, 9 December 2021, Civil Action No. 20-24867-Civ-Scola
(Grupo Unidos por el Canal, S.A. and others v. Autoridad del Canal de Panama)
UNITED STATES 1040
The District Court denied the motion to vacate a partial and a final award, and granted the cross-motion to confirm them. The movants argued that the awards should be vacated because the arbitrators had failed to disclose relevant information before the commencement of the proceedings and had only provided it at the request of the movants after the partial award had been rendered. The Court held, on the fact of the case, that while the principle of the impartiality of arbitrators was a well-defined and dominant public policy in the United States, and therefore its violation fell within the scope of Art. V(2)(b) of the New York Convention, there had been no violation of public policy here. Also on the facts of the case, the District Court rejected the argument that the evident partiality of the arbitrators manifested itself in the fact that the movants had been unable to present their case and that the arbitral proceeding had not been in accordance with the agreement of the parties within the meaning of Arts. V(1)(b) and V(1)(d) of the Convention, because the panel misinterpreted the contract between the parties and did not address certain evidence. The Court stressed that it could not review the merits of the award, and that it was only concerned with whether the movants had had opportunity to defend their case in the arbitration. The claim that the panel had adopted arguments that were not made by the parties was disproved by the evidence.
The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.
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.
Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.