Summary

...

SUMMARY OF ARGUMENT

This case concerns the enforceability of an international arbitral award.

There is little doubt that this award would be enforced if the tribunal had been sitting in the United States. It is the product of a reasoned decision rendered by an internationally competent panel that interpreted the parties' valid agreement and followed fair procedures. Although this award was rendered in Nigeria, there is equally little doubt that it would be enforceable in the United States absent interference by the Nigerian courts. Neither the award nor the agreement nor the underlying arbitration proceedings raise any of the concerns that might otherwise justify non-enforcement under the New York Convention.

The only question presented in this appeal is whether to give effect to the Nigerian court's decision to set aside this otherwise enforceable award--the sort of "gracious aid" that, as Petitioners have shown, Nigerian courts routinely grant to Nigeria's state-owned entity when an arbitral tribunal renders an award contrary to Nigerian state interests. Third Amended Petition ("TAP") ¶¶ 76-80. While Article V(1)(e) of the New York Convention provides that an award may be denied enforcement under these circumstances, it does not mandate that outcome. It does not grant courts of the arbitral forum unbridled authority to shred an international arbitral award whenever they wish to satisfy their local interests. It certainly does not sanction them to dispense hometown justice favoring their own government at the expense of the rule of law. And even when a foreign country's judicial system indulges in such behavior, the New York Convention certainly does not obligate this country's courts to be complicit. Cf. Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 111-12 (2d Cir. 2001) (citing Banco Nacional de Cuba v. Sabbantino, 376 U.S. 398, 488 (1964) (White, J., dissenting on other grounds) ("[N]o country has an obligation to further the governmental interests of a foreign sovereign.")). Indeed, a central purpose of the New York Convention was to discard the old rule of "double exequatur" that compelled an award creditor to confirm an award in the courts of the arbitral forum before seeking enforcement elsewhere. See Gary B. Born, International Commercial Arbitration 102 (2d ed. 2014).

Ultimately, then, this case requires this Court to balance its obligations under an international treaty and its oft-stated policy to promote arbitration (especially international arbitration) against prudential considerations of according comity to a foreign court's judgment. For the reasons that follow, this balance should be struck in favor of enforcing the international arbitral award in rare cases, like this one, where a state-owned entity has secured a set-aside judgment in its own sovereign courts on parochial grounds far removed from internationally accepted norms. Applying that standard to this case, the Nigerian judgment does not deserve deference. Accordingly, the case should be reversed and remanded with instructions to enforce the award or, in the alternative, to conduct an evidentiary hearing.

...