404 F. App'x 793
4th Cir.2010Background
- Globe challenges district court judgment confirming Swedish-arbitration final award in favor of Tenex.
- Contract for sale of uranium hexafluoride (2001–2013) governed by Swedish law; arbitration clause so governed.
- Arlanda Rules required witnesses to provide written statements and be available for cross-examination.
- Russian criminal investigation into TKST-related conspirators raised to affect the arbitration; record open for related evidence.
- Tribunal issued a partial award (Aug 2006) denying Tenex’s defenses; then validly proceeded to third phase to address contract validity.
- Final award (Dec 2006) held contract invalid under Swedish Act §33; Tenex awarded fees; Globe’s claims dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether transcripts from the Russian investigation were improperly considered. | Globe: transcripts are witness statements; cross-examination required. | Tenex: evidence relates to contract validity; within arbitration scope. | Waived; Globe did not raise cross-examination objection during arbitration. |
| Whether tribunal exceeded its authority by considering Russian criminal-law related matters. | Globe: criminal matters outside arbitration scope; violated Article V(1)(c) and public policy. | Arbitration clause permitted review of contract validity including related criminal facts. | Tribunal acted within scope; no public-policy violation. |
| Whether tribunal violated functus officio by reconsidering matters from the partial award. | Final award reopens issues resolved in partial award. | Partial award did not dispose of all issues; third phase allowed. | No functus violation; partial award moot in light of final award and separate issues. |
Key Cases Cited
- Three S. Del., Inc. v. Dataquick Info. Sys., Inc., 492 F.3d 520 (4th Cir. 2007) (narrow review of arbitration awards; scope limits on review)
- Apex Plumbing Supply, Inc. v. U.S. Supply Co., Inc., 142 F.3d 188 (4th Cir. 1998) (restrictive standard of review of arbitration awards)
- Remmey v. PaineWebber, Inc., 32 F.3d 143 (4th Cir. 1994) (limits on judicial review of arbitration awards)
- Hart Surgical, Inc. v. UltraCision, Inc., 244 F.3d 231 (1st Cir. 2001) (finality concepts in arbitral awards; functus officio context)
- Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046 (6th Cir. 1984) (interim award may be confirmed if severable from final award)
- Trade & Transport, Inc. v. Natural Petroleum Charterers, Inc., 931 F.2d 191 (2d Cir. 1991) (doctrine of functus officio in arbitration)
- Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d 327 (3d Cir. 1991) (finishes functus officio discussion; finality of arbitration judgments)