The University of Notre Dame (USA) in England v. TJAC Waterloo, LLC ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1558
THE UNIVERSITY OF NOTRE DAME (USA) IN ENGLAND,
Plaintiff, Appellee,
v.
TJAC WATERLOO, LLC; ZVI CONSTRUCTION CO., LLC,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Gelpí, Circuit Judges.
Richard E. Briansky, with whom Amy B. Hackett and Peckar &
Abramson, P.C. were on brief, for appellants.
John A. Tarantino, with whom Nicole J. Benjamin and Adler
Pollock & Sheehan, P.C. were on brief, for appellee.
September 13, 2022
GELPÍ, Circuit Judge. This is an appeal from the
district court's confirmation of a foreign arbitral tribunal's
assessment of damages in a contractual dispute relating to
construction defects. The underlying arbitration concerns joint
liability claims made by appellee The University of Notre Dame
(USA) in England ("Notre Dame") against appellants TJAC Waterloo,
LLC ("TJAC") and ZVI Construction Co., LLC ("ZVI"), respectively
the seller and renovator of a dormitory that Notre Dame had agreed
to purchase. In a previous decision, we affirmed the district
court's confirmation of the arbitrator's liability judgment
against TJAC and ZVI. See Univ. of Notre Dame (USA) in Eng. v.
TJAC Waterloo, LLC (Notre Dame I), 861 F.3d 287, 296 (1st Cir.
2017). Now, TJAC and ZVI challenge the district court's
confirmation of certain damages awarded to Notre Dame, arguing
that Notre Dame's petition for judicial confirmation of these
awards is time-barred. Because appellants' contentions in this
building-defect dispute rest on shaky foundations, we affirm.
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I. Background1
Upon purchasing from TJAC the building that ZVI had
renovated, Notre Dame became aware of numerous defects. The
ensuing dispute was submitted to arbitration, and the parties
agreed to bifurcate the proceedings, first trying the liability
elements of Notre Dame's breach-of-contract claim, and
subsequently litigating issues of "quantum" (i.e., damages) for
any breach found during the liability phase. Id. at 290.
In Notre Dame I, we addressed the finality of the
arbitrator's judgment of joint liability against TJAC and ZVI
following the conclusion of the first phase of the arbitration.
861 F.3d at 289. TJAC and ZVI argued that the district court erred
in confirming the arbitrator's liability award because that
judgment -- only pertaining to the first stage of the bifurcated
proceedings -- lacked the requisite finality for judicial
confirmation under the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, June 10,
1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (the "New York Convention").2
1 As this is the second time a dispute relating to the
underlying arbitration has made its way to this court, see Notre
Dame I, 861 F.3d at 287, we assume the reader's familiarity with
our earlier opinion, and rehearse here only the facts and travel
necessary to contextualize the instant appeal.
2 The New York Convention is implemented in domestic law
by chapter two of the Federal Arbitration Act ("FAA"). See 9
U.S.C. §§ 201-08.
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Notre Dame I, 861 F.3d at 291. We disagreed, holding that the
same standard of finality applicable under domestic law applies to
proceedings pursuant to the New York Convention and reiterating
our previous determination that "a bifurcated liability judgment
may qualify as final when the arbitrating parties have formally
agreed to litigate liability and damages in separate, independent
stages." Id. at 291-92 (citing Hart Surgical, Inc. v. Ultracision,
Inc., 244 F.3d 231, 235-36 (1st Cir. 2001)). On de novo review,
see Cytyc Corp. v. DEKA Prods. Ltd. P'ship, 439 F.3d 27, 32 (1st
Cir. 2006), we affirmed the district court's finding that the
arbitrator's liability judgment was indeed final and thus
susceptible to judicial confirmation. Notre Dame I, 861 F.3d at
293.
While the parties litigated judicial confirmation of the
liability awards (issued by the arbitrator as Awards No. 1 and No.
2), the arbitration continued to the quantum phase of the
proceedings. Between 2016 and 2020, the arbitrator issued a series
of damages awards concerning various costs that stemmed from the
breach established at the liability stage:
• Award No. 3 ("An Expert Determination on Quantum") -- Dated
September 20, 2016; regarding the preliminary "Cost of Works"
to remediate the deficiencies in the building under contract;
no amount was awarded.
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• Award No. 4 ("An Expert Determination on Quantum") -- Dated
April 11, 2017; regarding the final cost of works; the amount
awarded was £1,781,048.44.
• Award No. 5 ("Decisions") -- Dated July 27, 2017; regarding
certain additional and ancillary costs of work items not
covered by Award No. 4; the amount awarded was £957,450.00.
• Award No. 6 ("Expert Determination Award No. 6
(Amended)") -- Dated December 5, 2018; regarding interest due
on Awards No. 4 and 5; the amount awarded was £328,001.37 +
£269.52 per day (beginning on November 30, 2018).
• Award No. 7 ("Expert Determination Award No. 7 -- Decisions
as to VAT") -- Dated March 31, 2020; concerning costs relating
to the value-added tax (VAT) previously paid by Notre Dame as
well as remaining outstanding items (e.g., expert fees and
interest); the amount awarded was £547,699.00 + £5,040.00 +
£65,723.00 (interest through August 1, 2018) + £60.02 per day
(beginning on August 2, 2018).
On May 15, 2020, Notre Dame moved for the district court
to confirm these awards and enter summary judgment in its favor.
TJAC and ZVI opposed the motion, arguing that Award No. 4 was, for
purposes of judicial confirmation, final upon issuance and that
Notre Dame's request for confirmation of Award No. 4 was thus time-
barred. Because the FAA provides that a party to an arbitration
may apply for judicial confirmation "[w]ithin three years after an
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arbitral award falling under the [New York] Convention is made,"
see 9 U.S.C. § 207, and Award No. 4 was issued on April 11, 2017,
TJAC and ZVI posited that the statute of limitations for
confirmation of the award expired on April 11, 2020. Similarly,
TJAC and ZVI argued that Award No. 6 was partially ineligible for
judicial confirmation insofar as it granted interest on the
(putatively unconfirmable) Award No. 4.
The district court disagreed, holding that Award No. 4
was not a final award eligible for judicial confirmation upon
issuance. Instead, the court held that the three-year statute of
limitations for judicial confirmation only began to run upon the
issuance of Award No. 7 on March 31, 2020, as it was only at this
time that the arbitrator had "issued a decision as to all th[e]
sub-categories" of awards, and therefore arrived at a "final
comprehensive damages determination" that "definitively and
comprehensively settl[ed] the parties' dispute regarding damages."
Univ. of Notre Dame (USA) in Eng. v. TJAC Waterloo, LLC (Notre
Dame II), No. 16-CV-10150, 2021 WL 2827442, at *3 (D. Mass. July
7, 2021). Accordingly, the court granted Notre Dame's request for
judicial confirmation.3 Id. at *5. TJAC and ZVI timely appealed.
3 TJAC and ZVI also contested the confirmability of Award
No. 7 on the ground that it ran afoul of the "revenue rule," which
constrains judicial enforcement of recognition of foreign revenue
rules. The district court rejected this argument, Notre Dame II,
2021 WL 2827442, at *3-4, and appellants do not raise the issue on
appeal.
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II. DISCUSSION
A. The Finality Requirement
We review the district court's decision to confirm Notre
Dame's damages awards de novo. Cytyc Corp., 439 F.3d at 32.
Federal courts are generally loath to disturb arbitral awards,
deferring to arbitrators if they are "even arguably construing or
applying the contract and acting within the scope of [their]
authority." Id. (alteration in original) (quoting United
Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)).
As we have recognized, '[j]udicial review of binding arbitration
awards is necessarily limited so as to "maintain[] arbitration's
essential virtue of resolving disputes straightaway."' Farnsworth
v. Towboat Nantucket Sound, Inc., 790 F.3d 90, 99 (1st Cir. 2015)
(second alteration in original) (quoting Hall St. Assocs. v.
Mattel, Inc., 552 U.S. 576, 588 (2008)).
The FAA provides that, "[w]ithin three years after an
arbitral award falling under the [New York] Convention is made,"
a party may seek judicial confirmation of the award. 9 U.S.C § 207
(emphasis added). Appellants suggest that, because Award No. 4
was issued on April 11, 2017 and Notre Dame did not seek
confirmation until May 2020, the language of 9 U.S.C. § 207precludes confirmation. But this textual argument overlooks the
relationship between the meaning of "is made" in § 207 and the
Convention requirement that an award be "binding" to be confirmed.
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Confirmation under 9 U.S.C. § 207 is mandatory unless
"one of the grounds for refusal or deferral of recognition or
enforcement of the award specified in the said Convention" applies.
Id. One such exception provides that "[r]ecognition and
enforcement of the award may be refused" if "[t]he award has not
yet become binding on the parties." New York Convention art.
V(1)(e). Because an award can only be subject to judicial
confirmation if it is binding on the parties, we do not think an
award can be "made" under § 207 until the award is binding on the
parties. Interpreting "is made" to require only that a foreign
arbitral award "is issued" by an arbitrator would permit the
statute of limitations to run even where the "non-binding"
exception to confirmation in Article V(1)(e) prevented the winning
side from securing judicial confirmation of the issued award. See
New York Convention art. V(1)(e).
Our conclusion that an award "is made" within the meaning
of 9 U.S.C. § 207 when it becomes binding on the parties is
consistent with our precedent in the context of domestic arbitral
awards, see Hart Surgical, 244 F.3d at 233, 235 (interpreting "is
made" in 9 U.S.C. § 9 to mean "is made final"), and flows directly
from our reasoning in Notre Dame I, 861 F.3d at 291. There, we
held that the New York Convention's textual requirement that a
foreign arbitral award be "binding" is "conceptually
indistinguishable" from the judicially constructed requirement
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that a domestic arbitral award be "final" to be subject to judicial
confirmation under the FAA. 861 F.3d at 291. We observed that
this interpretation was "in harmony with cases from outside this
circuit that have addressed the Convention standard for judicial
confirmation with the domestic law vocabulary," id., and cited in
support of this equivalence the Ninth Circuit's observation that
"[t]he not-binding defense in the Convention's Article V(1)(e) may
be invoked when an action to confirm or enforce an arbitration
award is filed before the award has become final," id. (citing
Ministry of Def. & Support for the Armed Forces of the Islamic
Republic of Iran v. Cubic Def. Sys., Inc., 665 F.3d 1091, 1100
(9th Cir. 2011)), and district courts' equation of the requirements
of 'binding' and 'final,' id. (citing Ecopetrol S.A. v. Offshore
Expl. & Prod. LLC, 46 F. Supp. 3d 327, 336 (S.D.N.Y. 2014), and
Daum Glob. Holdings Corp. v. Ybrant Digit. Ltd., No. 13 CIV. 03135,
2014 WL 896716, at *2 (S.D.N.Y. Feb. 20, 2014)). The key
consideration in this case, therefore, is when the damages awards
became binding on the parties. And, as we concluded in Notre Dame
I, it was appropriate to scrutinize foreign arbitral awards "by
the familiar finality standard that[,] '[n]ormally, an arbitral
award is deemed "final" provided it evidences the arbitrators'
intention to resolve all claims submitted in the demand for
arbitration.'" Id. (second alteration in original) (quoting Hart
Surgical, 244 F.3d at 233).
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In a different context, the Second Circuit in
Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co. v.
Navimpex Centrala Navala, 989 F.2d 572 (2d Cir. 1993), held that
a foreign arbitral award is "made" for FAA purposes when it is
"originally decided by the arbitrators," rather than when the
appeals process provided by the arbitral forum state has been
exhausted. Id. at 581 (holding that § 207's three-year statute of
limitations was triggered by the issuance of the "final award" by
a French arbitral tribunal, rather than upon the subsequent
dismissal of an appeal before the Court of Appeal of Paris,
whereupon the award "became final" as a matter of French law).
TJAC and ZVI cite Seetransport for the proposition that
the statute of limitations for foreign arbitral awards begins to
run when an award is "decided by the arbitrator and issued." We
see no daylight, however, between Seetransport's "originally
decided by the arbitrators" test and our own intent-based approach
to determining arbitral finality. Indeed, the Seetransport court
explicitly contrasted a previous "interim award issued" by the
arbitrator (which did not trigger § 207's statute of limitations)
with the arbitrator's "final award" (which did). 989 F.2d at 574.
It was thus only upon issuance of the latter, which definitively
and comprehensively resolved the claims at bar, that the award was
"made" and "decided by the arbitrators." Id. at 581. As such,
the Second Circuit deemed this decree a "final award" in much the
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same way as we ordinarily understand arbitral finality -- that is,
reflecting the "arbitrators' intention to resolve all claims
submitted in the demand for arbitration." Notre Dame I, 861 F.3d
at 291 (quoting Hart Surgical, 244 F.3d at 233).4
Having established this legal background, we now proceed
to evaluate the parties' arguments about when the awards became
final.
B. The Interim Arbitral Awards Were Not Final
On appeal, TJAC and ZVI contest the district court's
determination that the damages awards only became final on March
31, 2020, at which time the arbitrator issued Award No. 7,
resolving the last remaining subcategory of damages and
"definitively and comprehensively settling the parties' dispute
4 Moreover, our reading of Seetransport as incorporating
an arbitral intent standard of finality is in harmony with the
Second Circuit's jurisprudence in the domestic arbitral context.
There, the Second Circuit held that an arbitral award that fails
to conclusively dispose of a separate independent claim -- and is
thus "nonfinal" as a question of arbitral intent -- does not
trigger the one-year statute of limitations established by 9 U.S.C.
§ 9. See Kerr-McGee Refin. Corp. v. M/T Triumph, 924 F.2d 467,
471 (2d Cir. 1991) (questioning "whether the one-year limitation
should apply to a party seeking confirmation of an award that does
not end the arbitration, since such a rule 'will make arbitration
more complicated, time consuming and expensive,'" but holding that
the court "need not resolve this issue" because "the Partial Final
Award did not finally dispose of a separate independent claim,
thus rendering the one-year limitation inapplicable in any event"
(citation omitted)); see also Photopaint Techs., LLC v. Smartlens
Corp., 335 F.3d 152, 158 (2d Cir. 2003) (noting that "section
207 . . . is analogous to section 9 of the FAA," rendering
precedent concerning § 207 "difficult to distinguish" from cases
concerning § 9 (citing Seetransport, 989 F.2d at 580-81)).
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regarding damages." Notre Dame II, 2021 WL 2827442, at *3.
Appellants argue that Award No. 4 was, in fact, a final arbitral
award, for which the FAA's three-year statute of limitations for
judicial confirmation began to run on April 11, 2017. Because
Notre Dame moved for judicial confirmation on May 15, 2020,
appellants contend that the award (and, derivatively, the portion
of Award No. 6 granting interest on Award No. 4) is no longer
judicially confirmable. In support of their argument, appellants
place great emphasis on language in Award No. 4 referring to the
arbitrator's "final views" and stating that the "[d]eterminations
herein served are final Quantum sums." Seizing on these two usages
of the word "final," and suggesting that the parties intended for
each interim damages award to be confirmable upon issuance, TJAC
and ZVI argue that the district court erred in determining that
the interim award was nonfinal, such that confirmation in this
case would not be barred by the statute of limitations, because it
did not resolve all outstanding damages claims. On this telling,
although various claims remained to be adjudicated when Award No.
4 was issued, the award was sufficiently discrete and definitive
-- and its "plain language" adequately probative of the
arbitrator's intent -- to be final upon issuance.
Careful examination of the awards at issue leads us to
conclude otherwise. TJAC and ZVI first encounter a formidable
obstacle in their attempts to evade judicial confirmation upon
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confronting our circuit's well-worn finality standard, by which we
"[n]ormally" deem an award final if it reflects the arbitrator's
intent to resolve "all claims submitted in the demand for
arbitration." Notre Dame I, 861 F.3d at 291 (alteration in
original) (quoting Hart Surgical, 244 F.3d at 233). By its plain
terms, Award No. 4 did not purport to resolve every claim submitted
to arbitration. Instead, Award No. 4 only addressed certain "Cost
of Works" damages resulting from TJAC and ZVI's breach of contract,
explicitly disclaiming a comprehensive resolution and noting that
multiple "Heads of Claim" were "yet to be decided." Nor did the
various damages awards correspond to different findings of
liability at the first stage of the arbitration. Rather, all
damages flowed from the same, singular liability determination on
the breach-of-contract claim asserted by Notre Dame. Against this
backdrop, we proceed to assess whether TJAC and ZCI furnish
sufficient reason for us to deviate from our "general rule"
regarding arbitral finality. See Hart Surgical, 244 F.3d at 233.
TJAC and ZVI's suggestion that the parties nonetheless
agreed for the seriatim damages awards to be considered final upon
issuance -- akin to their prior agreement to bifurcate the arbitral
proceedings into separate and binding liability and damages phases
-- does not suffice to surmount the hurdle posed by our finality
standard. Noting the district court's finding that "[w]ithin the
damages phase, the parties asked the [arbitrator] to adjudicate
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multiple damages sub-categories," Notre Dame II, 2021 WL 2827442,
at *3, TJAC and ZVI assert that the parties entered into a "unique
agreement" under which the arbitrator would grant a series of
"discrete, final and confirmable interim awards" during the
damages phase. But TJAC and ZVI do not offer evidence that any
such express or implied agreement ever existed, and we find none
in the record. The fact that the parties intended for the
arbitrator to assess multiple types of damages flowing from the
breach of contract, and that these damages were adjudicated in a
piecemeal fashion, does not evidence an intention or agreement
that the individual damage awards would be separately confirmable
upon issuance. There is no parallel here to the situation we
encountered in Notre Dame I, where the parties agreed to bifurcate
the arbitration into separate liability and damages stages. It
was only in light of that agreement that the arbitrator issued its
"binding decision[] as to [l]iability."5 See Notre Dame I, 861
F.3d at 290, 292 n.2; see also Hart Surgical, 244 F.3d at 235
5 This agreement, moreover, reflected our longstanding
recognition of the "legitimacy of requesting bifurcation in
foreign as well as domestic arbitral determinations" and deferring
to the "arbitrator's understanding of finality on a bifurcated
component" of the arbitration. Notre Dame I, 861 F.3d at 293.
This precedent does not support the disaggregation of a damages
proceeding within a bifurcated arbitration into separate and
independently final sub-proceedings. To the contrary, our
decision in Notre Dame I reflected an understanding that the
quantum phase of the arbitration would consist of one "separate
proceeding to assess damages," not multiple. Id. at 292.
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(noting that "the definiteness with which the parties have
expressed an intent to bifurcate is an important consideration" in
determining whether an award is final).
Just as we find no joint agreement between the parties
regarding the finality of the interim damages awards, neither do
we discern any such intent on the part of the arbitrator. TJAC
and ZVI contrast Award No. 4's statement that the "[d]eterminations
herein served are final Quantum sums," with language in Award No.
3, concerning the same subcategory of damages, labeling that award
"preliminary views" rather than a "[f]inal [d]etermination."
However, appellants' entreaties to follow the arbitrator's "plain
language" ignore the following lines in Award No. 4, which advise
that "[t]he Awards are to be read together" and that multiple
damages subcategories were "yet to be decided." In other words,
as the district court recognized, the arbitrator only viewed his
damages determination as "comprehensive" and therefore "final"
once all the awards had issued. Notre Dame II, 2021 WL 2827442,
at *3.
From that perspective, the arbitrator's admonition to
read the damages awards in tandem reveals a very different picture
of the arbitrator's intent from that depicted by TJAC and ZVI.
Consider, for example, appellants' claim that "each Award (Nos. 4,
5, 6 and 7) resolved separate discrete issues finally and forever,"
being thereby "discrete, final, and confirmable" upon issuance.
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In language mirroring Award No. 4, Award No. 5 states that it is
a "final [d]ecision," according to which the arbitrator's
"preliminary views are now amended & final." Among the damages
assessed in Award No. 5 was an ongoing interest award granted to
Notre Dame, assessed at a daily rate of £117.48. According to
appellants' theory of the case, this award was final and
confirmable on July 27, 2017, the date of its issuance. But in
Award No. 6, issued on December 5, 2018, the arbitrator revised
his previous interest determination from Award No. 5, reassessing
the same ongoing interest expense to accrue at a daily net rate of
£269.52. The fact that the arbitrator saw fit to subsequently
amend the damages already granted in Award No. 5 -- notwithstanding
that the award was labeled "final," and that over sixteen months
had elapsed in between awards -- is at odds with appellants'
assertion that the arbitrator intended for the interim damages
awards to "definitively and forever resolve claims between the
parties."
We see no evidence that the arbitrator regarded Award
No. 4 any differently from Award No. 5. It is, indeed, TJAC and
ZVI's position that Awards No. 4 and 5 are of the same nature,
each being sufficiently "specific and discrete" to be
"independently confirmable" upon issuance. This claim, however,
is contradicted in the arbitrator's subsequent modification of
Award No. 5, well over a year after its initial issuance. Read in
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context of the overall seriatim award process, then, the
arbitrator's bare use of the word "final" in these awards did not
constitute a term of art or otherwise evince an intent to issue a
definitive, confirmable award.6 See Publicis Commc'n v. True N.
Commc'ns Inc., 206 F.3d 725, 728 (7th Cir. 2000) ("The content of
a[n] [arbitral] decision -- not its nomenclature -- determines
finality.") Rather, it merely indicates that the arbitrator,
having come to an interim (and amendable) decision on one set of
issues, intended to move on to evaluate the next subcategory of
damages to be considered in the proceedings. As the district court
noted, the fact that the arbitrator followed a "piecemeal approach"
to evaluating the various damages -- all flowing from the same
breach of contract and grouped together for apparent purposes of
administrative convenience -- "does not . . . suggest that each
time the [arbitrator] decided a particular component, that
decision was a final arbitral award." Notre Dame II, 2021 WL
2827442, at *3.
Given that neither the parties' conduct during the
arbitration nor the arbitrator's treatment of the individual
6 By way of contrast, we further note that the arbitrator
termed the liability award at issue in Notre Dame I a "binding
[d]ecision" that "cannot be changed," echoing the terminology for
arbitral finality employed by the New York Convention. See Notre
Dame I, 861 F.3d at 293; New York Convention art. V(1)(e). No
comparable language can be found in the interim damages awards at
issue.
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damages award evinces an understanding that the awards at issue
would be final upon issuance, we find the out-of-circuit caselaw
that TJAC and ZVI recite regarding the confirmability of interim
damages awards to be inapposite. To be sure, as we have previously
noted, "[s]everal circuits have recognized exceptions to th[e]
general rule" of arbitral finality, according to which "an arbitral
award is deemed 'final' provided it evidences the arbitrators'
intention to resolve all claims submitted in the demand for
arbitration." Hart Surgical, 244 F.3d at 233 (quoting Fradella v.
Petricca, 183 F.3d 17, 19 (1st Cir. 1999)). We have recognized
one such exception (announced in Hart Surgical and applied in Notre
Dame I) that a "partial award" on liability, in a bifurcated
proceeding agreed upon by the parties, can be final for purposes
of judicial confirmation. However, while our ordinary rule with
respect to arbitral finality is not ironclad, it does not follow
that an arbitration -- once cleaved into two stages -- can be yet
further fractured into multifarious sub-proceedings, each
producing separate and immediately confirmable final awards.
At a minimum, the cases cited by TJAC and ZVI require
that an award "finally and definitively dispose[] of a separate
independent claim" in order to be confirmable. Metallgesellschaft
A.G. v. M/V Capitan Constante, 790 F.2d 280, 283 (2d Cir. 1986);
accord Zeiler v. Deitsch, 500 F.3d 157, 169 (2d Cir. 2007); Rocket
Jewelry Box, Inc. v. Nobel Gift Packaging Inc., 157 F.3d 174, 176
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(2d Cir. 1998); Kerr-McGee Refin. Corp. v. M/T Triumph, 924 F.2d
467, 471 (2d Cir. 1991); Ecopetrol S.A. v. Offshore Expl. & Prod.
LLC, 46 F. Supp. 3d 327, 337 (S.D.N.Y 2014). Moreover, given that
judicial confirmation of interim awards constitutes an exception
to the ordinary rule governing arbitral finality, these cases often
involve other factors -- such as the peculiar character of the
arbitration, express agreements between litigants, or unusually
exigent circumstances -- that are not present here. See, e.g.,
Zeiler, 500 F.3d at 169 (finding certain interim awards to be final
given the "unique character of th[e] arbitration, as agreed by the
parties"); Publicis Commc'n, 206 F.3d at 729 (construing an order
as immediately confirmable because "the order was necessary to
prevent the final award from becoming meaningless"); see also Hall
Steel Co. v. Metalloyd Ltd., 492 F. Supp. 2d 715, 719-20 (E.D.
Mich. 2007) (cataloguing caselaw and tracing a "common feature" in
many cases where "courts have found it appropriate to confirm
interim awards," viz., "that the party seeking confirmation was
seeking an immediate need for relief").
As we have just explained, Award No. 4 did not "finally
and definitively" resolve a claim, Metallgesellschaft A.G., 790
F.2d at 283, and the parties had no agreement to treat the various
damages awards as independently final and confirmable. Further,
as established supra, the damages do not correspond to 'separate'
and 'independent' claims, id., but rather all flow from the same
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breach of contract established at the liability stage. As such,
regardless of whether there are circumstances outside of the
bifurcated liability award context where certain interim awards
may be immediately confirmable, we do not face such a situation
here.
* * *
"The primary purpose served by the arbitration process
is expeditious dispute resolution." Fradella, 183 F.3d at 19.
"Arbitration loses some of its luster, though, when one party
refuses to abide by the outcome and the courts are called in after
all for enforcement." Publicis Commc'n, 206 F.3d at 729. TJAC
and ZVI have now twice come to us in attempts to avoid judicial
confirmation. They urge us to deviate from our ordinary approach
to arbitral finality, instead adopting a rule that would force
litigants in arbitral proceedings to run to the courthouse upon
the issuance of interim awards lest they lose their right to
judicial confirmation.
Nothing in the awards in question, our precedents, or
the principles that animate our liberal approach to arbitration
compels such an outcome. Indeed, we have previously noted the
risk of "creat[ing] situations at the arbitration level in which
[a party] may forfeit an appeal . . . by waiting until all
arbitration proceedings are complete." Hart Surgical, 244 F.3d at
236. Similarly, we have admonished that district courts should
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not be held "open as an appellate tribunal during an ongoing
arbitration proceeding, since applications for interlocutory
relief result only in a waste of time, the interruption of the
arbitration proceeding, and . . . delaying tactics in a proceeding
that is supposed to produce a speedy decision." Id. at 233(quoting Michaels v. Mariform Shipping, S.A., 624 F.2d 411, 414
(2d Cir. 1980)). We find that Award No. 4 was not confirmable
upon issuance, and that the three-year statute of limitations
established by 9 U.S.C. § 207 only began to run upon the issuance
of the final arbitral award in March 2020.7 As such, Notre Dame's
motion for judicial confirmation was not time-barred.
III. CONCLUSION
Affirmed. Costs awarded to appellee.
7 Because we find that Notre Dame's motion for judicial
confirmation of Award No. 4 was timely, we need not consider TJAC
and ZVI's argument that the portion of Award No. 6 granting
interest on Award No. 4 was time-barred.
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