Olin Holdings Ltd. v. State of Libya
73 F.4th 92
| 2d Cir. | 2023Background:
- Cyprus–Libya BIT (2004/2005) allowed investors to choose courts or ICC arbitration (Article 9(2)); awards final and binding.
- Olin, a Cypriot company owning a dairy/juice factory in Tripoli, was subject to a 2006 Libyan Expropriation Order; Libyan courts ultimately denied indemnity claims.
- Olin initiated ICC arbitration in 2014 under the BIT; Libya participated, the parties adopted Terms of Reference and ICC Rules, and bifurcated proceedings into jurisdiction and merits phases.
- Tribunal issued a 2016 Partial Award holding it had jurisdiction (rejecting a “fork‑in‑the‑road” reading of Article 9(2)) and a 2018 Final Award awarding Olin damages and costs.
- Olin filed to confirm the award in SDNY; the district court deferred to the tribunal on arbitrability, confirmed the award, and denied Libya’s forum non conveniens motion.
- Libya appealed, arguing it was entitled to de novo review of arbitrability, that the award fell outside the submission, and that the case should be dismissed for forum non conveniens.
Issues:
| Issue | Plaintiff's Argument (Olin) | Defendant's Argument (Libya) | Held |
|---|---|---|---|
| Existence of arbitration agreement | BIT creates a standing offer; Olin’s request completed arbitration agreement | Article 9(2) is a fork‑in‑the‑road condition; prior Libyan litigation precludes arbitration | Agreement existed when Olin filed ICC request; BIT plus Olin’s submission formed a binding arbitration contract |
| Who decides arbitrability | Parties adopted ICC Rules; those rules delegate arbitrability to tribunal | No clear and unmistakable delegation; courts should decide arbitrability de novo | ICC Rules (incorporated by BIT/TOR) provide clear and unmistakable delegation; arbitrators decide arbitrability first |
| Whether award exceeds submission (New York Convention Art. V(1)(c)) | Tribunal reasonably interpreted BIT; award within scope | Jurisdictional decision irrational; award unenforceable | Deferential review applies; tribunal’s interpretation has a barely colorable justification; confirm award |
| Forum non conveniens dismissal | Confirmation in U.S. proper; Paris is adequate alternative but dismissal not warranted | District court should dismiss in favor of another forum | District court did not abuse discretion; denial of dismissal affirmed |
Key Cases Cited
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (standard for who decides arbitrability; courts review absent clear and unmistakable delegation)
- BG Group, PLC v. Republic of Argentina, 572 U.S. 25 (2014) (distinguishes procedural conditions from formation of arbitration agreement)
- Republic of Ecuador v. Chevron Corp., 638 F.3d 384 (2d Cir. 2011) (BITs create standing offers; investor demand forms arbitration agreement)
- Schneider v. Kingdom of Thailand, 688 F.3d 68 (2d Cir. 2012) (incorporation of arbitral rules can evidence delegation of arbitrability)
- Beijing Shougang Mining Inv. Co. v. Mongolia, 11 F.4th 144 (2d Cir. 2021) (post‑agreement conduct and rule incorporation inform delegation analysis)
- Contec Corp. v. Remote Sol., 398 F.3d 205 (2d Cir. 2005) (adoption of rules empowering arbitrator to decide jurisdiction is clear delegation)
- Shaw Grp. Inc. v. Triplefine Int’l Corp., 322 F.3d 115 (2d Cir. 2003) (agreement to ICC rules supplies clear and unmistakable delegation)
- Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019) (courts lack power to decide arbitrability when parties delegate it to arbitrator)
- Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255 (2d Cir. 2003) (deferential standard; ‘‘barely colorable justification’’ for confirming awards)
- Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 (2010) (formation/existence of arbitration agreement is for courts to decide)