BSH Hausgeräte, GMBH v. Kamhi
282 F. Supp. 3d 668
S.D. Ill.2017Background
- BSH moved under Rule 64 and CPLR 6201, 6211, 6212 to confirm an Order of Attachment against Kamhi's property at 15 West 53rd Street, Apt. 32B, NY.
- The attachment follows a 2003 Share Sale and Purchase Agreement (SPA-BSH) with ICC arbitration provision; Kamhi also signed a separate SPA (SPA-DB) with another party.
- ICC arbitral proceedings began in 2013; arbitration bifurcation addressed whether the DA termination automatically terminated SPA-BSH, with a Final Award issued February 6, 2017 in BSH's favor.
- The Final Award awarded BSH about $544,230, €1,900,487.13, plus Turkish-law interest, and indicated no second phase was needed.
- Attachment was granted ex parte on July 31, 2017 (corrected August 3, 2017); Kamhi is a Turkish national with property in New York; assets outside NY exist and the property may be sold.
- Petition to confirm the attachment was filed July 28, 2017 and the motion was fully submitted September 27, 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a cognizable action and likelihood of success on the merits to confirm the award | BSH will likely succeed in confirming the Final Award under the FAA/Convention. | Kamhi argues flaws in due process and enforcement grounds under the Convention. | Petitioner shows likelihood of success; attachment may be confirmed. |
| Whether CPLR 6201(a) grounds exist to attach a nondomiciliary residing outside NY | Kamhi is a Turkish nondomiciliary, satisfying 6201(a). | Kamhi contends attachment is improper or unnecessary. | Ground satisfied; nondomiciliary attachment established. |
| Whether the amount sought exceeds known counterclaims | Approximately $3 million is likely recoverable under the Final Award; counterclaims are not shown. | The judgment amount is disputed, possibly only a fraction of the Final Award. | Elements satisfied; amount likely recoverable exceeds counterclaims. |
| Whether attachment is necessary to secure payment/jurisdiction | Respondent's assets are outside NY and the Property may be sold; attachment ensures security. | Respondent voluntarily appeared; attachment unnecessary for jurisdiction or security. | Necessity established; attachment appropriate to prevent judgment-proofing. |
Key Cases Cited
- Capital Ventures Int'l v. Republic of Arg., 443 F.3d 214 (2d Cir. 2006) (defines grounds and purpose of attachment and recognition under the Convention)
- D.H. Blair & Co. v. Gottdiener, 462 F.3d 95 (2d Cir. 2006) (FAA/Convention review: strict yet limited grounds for refusing recognition)
- Yusuf Ahmed Alghanim & Sons v. Toys "R" Us, Inc., 126 F.3d 15 (2d Cir. 1997) (court shall confirm award unless specific Convention grounds exist)
- Landy Michaels Realty Corp. v. Local 32B-32J, Serv. Emp a0Int'l Union, 954 F.2d 794 (2d Cir. 1992) (due process and enforceability considerations in arbitration)
- ITCEntm't, Ltd. v. Nelson Film Partners, 714 F.2d 217 (2d Cir. 1983) (attachments and enforcement principles in arbitration context)