10.º Circ. destaca discricionariedade do tribunal dos EUA sobre sentenças arbitrais

This article was originally published in Law360 on May 24, 2023, and is republished here with permission.

In Compañía de Inversiones Mercantiles SA v. Grupo Cementos de Chihuahua SAB de CV, a panel of judges on the U.S. Court of Appeals for the Tenth Circuitrecently held in a 2-1 decision that the U.S. District Court for the District of Colorado had not abused its discretion when it denied a Federal Rule of Civil Procedure 60(b)(5) motion to vacate its prior confirmation of a foreign arbitral award, even though a foreign court in the country where the arbitration took place had annulled the award after the district court’s initial recognition.

The decision is notable because under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, U.S. federal courts usually defer to the annulment orders of courts located in the country where the arbitral award was issued.[1]

This is only the second time a U.S. federal court of appeals decided the public policy interests of letting the initial foreign arbitral award stand outweigh the interests of comity toward a subsequent annulment ruling in the same foreign jurisdiction. And it is the first time such a decision was based on Rule 60(b)(5).

Antecedentes

In 2005, a group of Mexican companies known as Grupo Cementos de Chihuahua SAB de CV, or GCC, entered into a shareholder agreement with Compañía de Inversiones Mercantiles SA, or CIMSA, a Bolivian company, regarding interests in a cement company based in Bolivia.[2]

The parties agreed to submit any disputes to Bolivia’s national chapter of the Inter-American Commercial Arbitration Commission. When a dispute arose in 2011, the parties initiated arbitration proceedings in Bolivia. The Bolivian arbitration tribunal ruled in CIMSA’s favor and awarded $34 million.[3]

In September 2015, CIMSA petitioned the U.S. District Court for the District of Colorado to confirm the award under the New York Convention. While this petition was pending, GCC initiated proceedings in Bolivia to annul the damages portion of the award.[4] GCC’s challenge was initially successful: a Bolivian judge annulled the damages award in October 2015.

In December 2016, however, the Plurinational Constitutional Tribunal, or PCT, an independent Bolivian court responsible for reviewing decisions about alleged constitutional violations, vacated this annulment decision. In March 2019, the U.S. district court confirmed the award.

In May 2019, GCC initiated a new action in Bolivia, challenging the PCT’s prior decision on procedural grounds. While this action proceeded, in August 2020 the Tenth Circuit affirmed the district court decision to confirm the award. In October 2020, GCC’s new challenge reached the PCT.[5] A different chamber of the PCT presided over the challenge and invalidated the prior PCT decision and annulled the damages portion of the award.

In November 2020, GCC filed a Rule 60(b)(5) motion in the District of Colorado, seeking to vacate the court’s March 2019 confirmation of the damages award.[6] The district court denied the motion in April 2021.[7] GCC appealed to the Tenth Circuit, which affirmed the denial on Jan. 10, 2023.[8]

District Court’s April 2021 Decision

The district court began its analysis by stating that a grant of a Rule 60(b)(5) motion is an “extraordinary remedy” for “compelling circumstances” and requires the court to broadly consider equitable factors.[9]

The district court reasoned that under the New York Convention, enforcement of foreign arbitral awards is favored.[10]

And while the New York Convention provides that “enforcement of [a foreign arbitral] award may be refused … [if] [t]he award has … been set aside … by a competent authority of the country in which … that award was made,”[11] the district court pointed to a “narrow public policy exception” to this enforcement defense when the foreign proceedings are “repugnant to fundamental notions of what is decent and just in the United States.”[12]

The district court stated that while it did not see the 2020 Bolivian annulment orders themselves rising to this level, it reasoned that it had previously confirmed the award — and the court of appeals affirmed — after the initial Bolivian court decision denying annulment of same, and to allow “proceedings without end” in spite of these decisions would result in the “repugnant” effect of undermining the finality of court orders.[13]

Court of Appeals’ Majority Opinion From January 2023

The Tenth Circuit agreed with the district court’s approach.[14]

The court of appeals reasoned that U.S. courts follow the New York Convention, which mandates comity to foreign arbitral awards except in certain circumstances, including when such enforcement would undermine the public policy of the U.S.[15]

The court observed that only six U.S. circuit decisions had considered whether to enforce foreign arbitral awards following the foreign courts’ annulment of the same, and all six decisions weighted the interest of comity against U.S. public policy:[16][17]

• The Second Circuit’s 1999 decision in Baker Marine Nigeria Ltd. v. Chevron Nigeria Ltd.;

• The Second Circuit’s 2016 decision in Corporación Mexicana de Mantenimiento Integral S de RL de CV v. Pemex-Exploración y Producción;

• The Second Circuit’s 2017 decision in Thai-Lao Lignite Co. v. Government of Lao People’s Democratic Republic;

• The Second Circuit’s 2022 decision in Esso Exploration & Production Nigeria Ltd. v. Nigerian National Petroleum Corp.;

• The D.C. Circuit’s 2007 decision in TermoRio SA ESP v. Electranta SP; and

• The D.C. Circuit’s 2017 decision in Getma International v. Republic of Guinea.

The New York Convention also instructs nonprimary jurisdictions to enforce foreign arbitral awards in accordance with the nonprimary jurisdictions’ own rules of procedure.[18]

In the U.S., the relevant rules are the Federal Rules of Civil Procedure; specifically, for enforcing a foreign court’s annulment of an arbitral award after a U.S. court has already confirmed the foreign arbitral award, the relevant rule is Rule 60(b)(5). Vacatur of a U.S. judgment under Rule 60(b)(5) is limited to “exceptional circumstances” and prompts courts to weigh a broad range of equitable factors.

Of the six circuit decisions dealing with the enforcement of annulled foreign awards, Thai-Lao and Pemex were the most relevant to the Tenth Circuit’s analysis.

In Thai-Lao, the Second Circuit affirmed the district court’s decision to grant a Rule 60(b)(5) motion and vacate a previously confirmed annulled award. The Second Circuit determined that “[n]o showing had been made that vacatur [would] offend basic notions of justice in the United States.”[19]

In Pemex, the district court confirmed an annulled award and the Second Circuit affirmed.[20]

The Second Circuit, in conducting a comity versus public policy weighing analysis under the New York Convention — but not under Rule 60(b)(5) — determined principles of comity were outweighed by four public policy considerations:

(1) the vindication of contractual undertakings and the waiver of sovereign immunity; (2) the repugnancy of retroactive legislation that disrupts contractual expectations; (3) the need to ensure legal claims find a forum; and (4) the prohibition against government expropriation without compensation.[21]

The Second Circuit reasoned that “giving effect to the … nullification of the award in [the foreign state] would run counter to United States public policy.”[22]

The Tenth Circuit in CIMSA v. GCC read Thai-Lao’s Rule 60(b)(5) analysis as requiring “district court[s] [to] balance comity against United States’ public policy” while requiring the moving party to provide “highly convincing evidence that it is entitled to [the] extraordinary remedy [of vacatur] and that its conduct as a matter of equity should allow vacatur.”[23]

The Tenth Circuit held the district court did not clearly err in deciding, in a Rule 60(b)(5) analysis, that U.S. policy interests outweighed the interests of comity to the Bolivian annulment orders.[24] The U.S. policy interests at stake were “(1) [protecting] the finality of judgments, (2) upholding parties’ contractual expectations and (3) … favor[ing] … arbitral resolution.”[25]

The Tenth Circuit further affirmed the district court’s holding that even if the Bolivian annulment orders themselves were not repugnant to these public policy interests, U.S. recognition of the annulment orders could have a sufficiently repugnant effect on the public policy interests.[26]

Court of Appeals’ Dissent

In dissent, Judge Veronica S. Rossman observed the dispute between CIMSA and GCC was “quintessentially foreign” — a “purely private commercial controversy” about an arbitration made between foreign parties under foreign law in a foreign country.[27]

She argued there was “no serious question that the 2020 PCT Order is the last word on the Damages Order”[28] and that the majority made several fundamental errors of law in affirming confirmation of the arbitral award.

First, Judge Rossman argued, the majority ignored Thai-Lao’s observations that “[t]he annulment of an arbitral award in the primary jurisdiction should … be given significant weight” and that “district courts should consider the point that ‘under the [New York] Convention, the power and authority of the local courts of the [primary jurisdiction] remain of paramount importance.’”[29]

Second, Judge Rossman argued the majority sanctioned an improperly expansive reading of what should be a “narrow” public policy exception to the New York Convention’s comity principle.[30] Judge Rossman pointed out that the majority allowed U.S. public policy concerns to overcome principles of comity to a foreign annulment order when the foreign annulment order itself was not “repugnant” to U.S. foreign policy.[31]

The D.C. Circuit in TermoRio held that a “foreign judgment is unenforceable as against public policy to the extent that it is repugnant to fundamental notions of what is decent and just in the United States.”[32] And in Getma, the D.C. Circuit reiterated that for the court to intervene “in [a] quintessentially foreign dispute, [it] would need to find the [foreign court’s] annulment of the award to be repugnant to the United States’s most fundamental notions of morality and justice.”[33]

Judge Rossman argued that Pemex and Thai-Lao did not deviate from these holdings, because even though these decisions recognized that the enforcement of a repugnant foreign judgment would have a repugnant effect, the decisions relied primarily on the repugnancy of the foreign judgments themselves, not on the repugnant effects alone.[34]

Finally, even if the repugnant effect of a foreign order could be the basis for overcoming U.S. courts’ obligations to grant comity to foreign courts, Judge Rossman concluded the majority erred in determining “a general finality interest” could “satisfy the repugnancy standard.”[35]

There is an entire doctrine of U.S. case law observing the importance of comity to foreign judgments.[36] Pemex, Thai-Lao, TermRio and Esso themselves all recognize this doctrine and the “exacting legal standard” required to outweigh this principle of comity.[37]

Judge Rossman argued that, by itself, a general finality interest — or, alternatively, the interest of upholding parties’ contractual expectations or the interest of favoring arbitral resolutions — is not “so dominant and clearly defined an interest” to meet this standard under the New York Convention.[38]

Subsequent Proceedings

GCC filed a petition for a rehearing en banc, but the Tenth Circuit declined to reconsider the panel’s decision.[39] In March 2023, the parties informed the court that they had reached a settlement.[40]

Principais conclusões

While the facts in CIMSA v. GCC are rather unusual in that two panels of the highest foreign court reached contradictory conclusions regarding enforcement — and especially because the foreign annulment order came after a U.S. court recognized the foreign award — the case demonstrates U.S. courts’ discretionary powers over the enforcement of foreign arbitral awards.

It shows that U.S. courts generally have less discretionary power over a motion to confirm a foreign arbitral award than they do over a motion to vacate a U.S. court’s earlier confirmation of a foreign arbitral award.

For the former, district courts must follow the New York Convention’s favoritism toward the enforcement of foreign arbitral awards and, more broadly, the U.S. doctrine of granting comity to the decisions of foreign courts.

For the latter, the foreign-comity analysis is bottlenecked — or perhaps even inverted — by a Rule 60(b)(5) analysis, which obligates district courts to let prior U.S. orders stand unless compelling circumstances dictate otherwise.

The holding in CIMSA v. GCC could signal an expansion in district courts’ discretionary powers over motions to enforce foreign arbitral awards, at least in the Tenth Circuit. The case strengthens — or arguably creates — the precedent that a foreign arbitral award that has been annulled can still be enforced in the U.S. unless such enforcement would create a repugnant effect on U.S. public policy.

This could further incentivize parties who prevail in foreign arbitration to confirm their awards in the U.S.

The CIMSA v. GCC decision also can be read as expansionary for the U.S. public policy exception to international comity principles in that the Tenth Circuit determined that violating principles of finality — of U.S. court decisions and arbitrations — has sufficiently repugnant effects on U.S. public policy to overcome comity to foreign courts.

The only other circuit court decision to overcome comity to foreign arbitral decisions did so on the grounds that retroactive legislation and government taking without compensation, inter alia, were repugnant. Finality principles are more generalized and may afford litigants in the U.S. an argument to combat foreign decisions that prolong disputes.

[1] Rule 60(b)(5) provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

. . .

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable[.] . . .

[2] CIMSA v. GCC , 58 F.4th at 437–44.

[3] The arbitral tribunal also awarded CIMSA $2 million in fees and costs, with 6 percent annual interest.CIMSA v. GCC, 58 F.4th at 438.

[4] GCC also moved to annul the merits award but was unsuccessful.See CIMSA v. GCC, 58 F.4th at 439–40.

[5] CIMSA v. GCC, 58 F.4th at 442–43.

[6] See Compania De Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V. et al, United States District Court for the District of Colorado, Case No. 1:15-cv-02120-JLK, Dkt. No. 158, Respondents’ Rule 60(b)(5) Motion to Vacate the Judgment (Nov. 20, 2020).

[7] See Compania De Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V. et al, United States District Court for the District of Colorado, Case No. 1:15-cv-02120-JLK, Dkt. No. 214, Order Denying Motion to Vacate Judgment (ECF No. 158) (“Order Denying Vacatur”) (April 30, 2021),¶15.

[8] See CIMSA v. GCC, 58 F.4th 429 (dated Jan. 10, 2023).In the same order, the Tenth Circuit also confirmed a separate decision in which the U.S. District Court for the District of Colorado ordered GCC to turn over certain assets as part of the arbitration agreement.See CIMSA v. GCC, 58 F.4th at 437, 467–77.

[9] See Order Denying Vacatur,¶¶24–25.

[10] See Order Denying Vacatur,¶¶20–33.

[11] See New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21.3 U.S.T. 2517

[12] Order Denying Vacatur,¶22.

[13] Order Denying Vacatur,¶30. The district court also determined that GCC had engaged in inequitable conduct, and this determination “reinforced” its decision to deny vacatur. Order Denying Vacatur,¶34.

[14] See CIMSA v. GCC, 58 F.4th at 444–67.

[15] See CIMSA v. GCC, 58 F.4th at 445–46.

[16] Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd. , 191 F.3d 194 (2d Cir. 1999);Corporación Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Exploración y Producción, 832 F.3d 92 (2d Cir. 2016);Thai-Lao Lignite (Thailand) Co. v. Gov’t of Lao People’s Democratic Republic , 864 F.3d 172 (2d Cir. 2017);Esso Expl. & Prod. Nigeria Ltd. v. Nigerian Nat’l Petroleum Corp ., 40 F.4th 56 (2d Cir. 2022);TermoRio S.A. E.S.P. v. Electranta S.P ., 487 F.3d 928 (D.C. Cir. 2007);Getma International v. Republic of Guinea , 862 F.3d 45 (D.C. Cir. 2017).

[17] See CIMSA v. GCC, 58 F.4th at 446–49.

[18] See CIMSA v. GCC, 58 F.4th at 446.

[19] See CIMSA v. GCC, 58 F.4th at 453 (citing Thai-Lao, 864 F.3d at 189).

[20] See CIMSA v. GCC, 58 F.4th at 447.

[21] Pemex, 832 F.3d at 107.

[22] Pemex, 832 F.3d at 97 (emphasis added).

[23] See CIMSA v. GCC, 58 F.4th at 450.

[24] CIMSA v. GCC, 58 F.4th at 451. The Tenth Circuit also found no error in the district court’s “inequitable conduct” determination.See CIMSA v. GCC, 58 F.4th at 465.

[25] CIMSA v. GCC, 58 F.4th at 458.

[26] See CIMSA v. GCC, 58 F.4th at 451–53.

[27] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 477 (citing Getma, 862 F.3d at 47).

[28] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 478.

[29] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 482 (citing Thai-Lao, 864 F.3d at 186) (internal citation omitted).

[30] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 482–87.

[31] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 487–91.

[32] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 488 (citing TermoRio S.A. E.S.P. v. Electranta S.P. , 487 F.3d at 939) (internal citation omitted).

[33] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 489 (citingGetma, 862 F.3d at 47).

[34] See CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 489 (citing Pemex, 832 F.3d at 107–08;Thai-Lao, 864 F.3d at 175.)

[35] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 480.

[36] See CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 491–99 (citing, inter alia, Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 555 (1987) (Blackmun, J., concurring in part and dissenting in part) (“Comity is not just a vague political concern favoring international cooperation when it is in our interest to do so. Rather it is a principle under which judicial decisions reflect the systemic value of reciprocal tolerance and goodwill.”)).

[37] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 491–99.

[38] CIMSA v. GCC, 58 F.4th (Rossman, J., dissenting), at 480.

[39] See Compania De Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V. et al, United States District Court for the District of Colorado, Case No. 1:15-cv-02120-JLK, Dkt. No. 276, Order of the United States Court of Appeals (March 13, 2023).

[40] See Compania De Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V. et al, United States District Court for the District of Colorado, Case No. 1:15-cv-02120-JLK, Dkt. No. 275, Stipulation of Dismissal Pursuant to Rule 41(a) (March 13, 2023).