USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11420
Non-Argument Calendar
________________________
D.C. Docket No. 1:20-cv-20059-RNS
GERARDO JOSE GUARINO,
Plaintiff - Appellant,
versus
PRODUCTOS ROCHE S.A.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 15, 2020)
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 2 of 13
Productos Roche S.A. (Roche) initiated an action against Iutum Services
Corp. (Iutum) and Gerardo Guarino, seeking confirmation of an international
arbitration award. The district court confirmed the award pursuant to
9 U.S.C.
§ 207. Guarino appeals the district court’s confirmation of the award against him
individually. Guarino asserts the district court’s confirmation of the award should
be reversed because (1) the agreement to arbitrate was not in writing, (2) he did not
receive sufficient notice of the arbitration, and (3) recognition of the arbitral award
is contrary to public policy of the United States. No reversible error has been
shown, and we affirm.
I. BACKGROUND
Roche, a Venezuelan company, and Iutum, a now-dissolved Florida
corporation, entered into a June 17, 2015 purchase agreement in which Roche
agreed to purchase pieces of electronic equipment from Iutum. Guarino, a director
of Iutum, signed the purchase agreement on behalf of Iutum. This purchase
agreement contained a conflict-resolution clause that provided any conflicts be
resolved by arbitration in Venezuela and in accordance with Venezuelan law. As
relevant here, the conflict-resolution clause states:
The parties will attempt to resolve among themselves, any controversy
or claim that arises from the execution, interpretation or breach of the
Agreement. To this end, either party will notify the other party by
means of a reasoned document, about the controversial matter, claim,
interpretation or alleged breach. Once the notification has been
received, the parties will have a period of thirty (30) calendar days to
2
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 3 of 13
resolve the matter raised. If the amicable solution of the controversy
is not reached within the previously mentioned period, or any of its
extensions agreed by mutual agreement between the parties, if any,
the dispute will be submitted to institutional arbitration by any of
them. The arbitration shall be conducted in the Spanish language, in
the city of Caracas and in accordance with Venezuelan law, in
accordance with the provisions contained in the General Law of the
Arbitration Center of the Caracas Chamber that is in force. . . .
Roche claimed that after it paid Iutum in full for 257 pieces of electronic
equipment, Iutum delivered only 138 pieces of electronic equipment and began
evading contact with Roche. Pursuant to the conflict-resolution clause contained
in the purchase agreement, Roche commenced an arbitration proceeding before the
Arbitration Center of the Caracas Chamber (ACCC) on August 21, 2017. The
arbitration proceeding was commenced against both Iutum and Guarino in his
personal capacity.
The ACCC determined that it was not possible to notify Iutum and Guarino
by express mail. Thus, in accordance with article 45 of the Rules of the ACCC, the
ACCC determined that notification by publication in a Venezuelan journal was a
proper method of notice of the request for arbitration, and Roche provided notice
to Iutum and Guarino in a local circulation newspaper in Venezuela. Guarino did
not see the notice in the Venezuelan newspaper from his home in Florida and
represents that he had no knowledge of the arbitration proceeding.
Three arbitrators were appointed on April 10, 2018. Subsequently, the
ACCC notified Iutum and Guarino by certified mail of certain actions in the
3
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 4 of 13
arbitration, and the ACCC recorded confirmation receipt of certified mail or DHL
courier of all notifications. Neither Iutum nor Guarino participated in the
arbitration, and the arbitrators entered a default against them. The arbitrators
rendered a final opinion on November 7, 2018, and found Iutum and Guarino
jointly and severally liable for a payment of $176,785.95. The ACCC also found
Iutum and Guarino jointly and severally liable for $53,035.79 for procedural costs
and attorney’s fees. Iutum and Guarino failed to pay Roche the amount owed from
the arbitration award, so Roche filed a petition in the Southern District of Florida
to confirm and enforce the award. The district court granted Roche’s petition.
II. DISCUSSION
We review a district court’s confirmation of an arbitral award de novo, and
the district court’s factual findings for clear error only. White Springs Agric.
Chems., Inc. v. Glawson Invs. Corp.,
660 F.3d 1277, 1280 (11th Cir. 2011). Both
parties agree that the arbitration is governed by the Inter-American Convention on
International Commercial Arbitration (Inter-American Convention), Jan. 30, 1975,
O.A.S.T.S. No. 42, 1438 U.N.T.S. 245 (effective for the United States on June 9,
1978). See
9 U.S.C. §§ 301-307 (providing for enforcement of the Inter-American
Convention in the United States). With respect to enforcement matters and
interpretation, the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York Convention), June 10, 1958, 21 U.S.T. 2517,
4
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 5 of 13
T.A.Z.S. No. 6997, 330 U.N.T.S. 38 (effective for the United States on Dec. 29,
1970), and the Inter-American Convention are substantially identical, and the case
law interpreting provisions of the New York Convention is largely applicable to
the Inter-American Convention. See Corporacion Mexicana de Mantenimiento
Integral, S. de R.L. de C.V. v. Pemex-Exploracion Y Produccion,
832 F.3d 92, 105
& n.9 (2d Cir. 2016). A party to an arbitral award falling under the Inter-American
Convention may apply to the district court having jurisdiction for an order
confirming the award, and “[t]he court shall confirm the award unless it finds one
of the grounds for refusal or deferral of recognition or enforcement of the award
specified in the [Inter-American] Convention.”
9 U.S.C. §§ 207, 302.
A. In-Writing Requirement
Guarino’s first issue on appeal is whether the district court’s order
confirming the award “should be reversed because in applying Venezuelan law the
Order violated . . . [the requirement the agreement be in writing] insofar as
[Guarino] did not sign an agreement to arbitrate with . . . Roche in his personal
capacity, nor do any of the recognized exceptions apply in this case to bind a non-
signatory to an arbitration agreement.” 1 Guarino contends he signed the agreement
1
As an initial matter, in his briefing, Guarino almost exclusively cites the New York
Convention rather than the Inter-American Convention, even though both parties agree the Inter-
American Convention applies. Both Venezuela and the United States are signatories to the Inter-
American Convention and the New York Convention. Article V of the Inter-American
Convention is substantively the same as the New York Convention, and we cite the Inter-
American Convention on Issues 2 and 3. We cite the New York Convention on Issue 1, because
5
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 6 of 13
on behalf of Iutum, and not in his individual capacity. Thus, it follows that any
agreement between Guarino and Roche is not in writing, and therefore cannot meet
the in-writing requirement.
Article IV of the New York Convention states the following:
1. To obtain the recognition and enforcement mentioned in the
preceding article, the party applying for recognition and enforcement
shall, at the time of the application, supply:
(a) The duly authenticated original award or a duly certified
copy thereof;
(b) The original agreement referred to in article II or a duly
certified copy thereof.
Article II of the New York Convention provides the following:
1. Each Contracting State shall recognize an agreement in
writing under which the parties undertake to submit to arbitration all
or any differences which have arisen or which may arise between
them in respect of a defined legal relationship, whether contractual or
not, concerning a subject matter capable of settlement by arbitration.
2. The term “agreement in writing” shall include an arbitral
clause in a contract or an arbitration agreement, signed by the parties
or contained in an exchange of letter or telegrams.2
that argument is based on the New York Convention language that does not have corresponding
language in the Inter-American Convention.
2
Article I of the Inter-American Convention requires that in order to compel arbitration,
there must be:
An agreement in which the parties undertake to submit to arbitral decision any
difference that may arise or have arisen between them with respect to a
commercial transaction is valid. The agreement shall be set forth in an instrument
signed by the parties, or in the form of an exchange of letters, telegrams, or telex
communications.
6
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 7 of 13
The district court did not err in determining that Guarino was a party to the
arbitration agreement and the in-writing requirement was satisfied. 3 Roche
complied with Article II(2)’s requirement to bring the district court the written
purchase agreement signed by the parties, which included a conflict-resolution
clause. While it is true that the agreement is between Iutum and Roche, that
agreement also provides that any conflicts are to be resolved pursuant to
Venezuelan law. The Venezuelan Commercial Code personally binds those who
contract in the name of companies established abroad and are not duly registered in
Venezuela. Venezuelan Commercial Code Art. 357 (“All those who contract in
the name of companies established abroad and not duly registered in Venezuela are
subject to personal and joint liability for all the obligations contracted in the
country . . . .”). The ACCC found that because Guarino had signed the purchase
agreement and Iutum was not incorporated in Venezuela, Guarino can be held
jointly and severally liable.4 Guarino’s argument that the agreement did not meet
the in-writing requirement is without merit.
3
The district court did not err in asserting subject-matter jurisdiction to confirm the
arbitration award. Czarina, L.L.C. v. W.F. Poe Syndicate,
358 F.3d 1286, 1292 (11th Cir. 2004).
4
Because we agree with the district court that there is an agreement in writing, we need
not address Guarino’s arguments regarding exceptions to the in-writing requirement.
7
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 8 of 13
B. Notice Requirement
Next, Guarino asserts the district court’s order “should be reversed because
the notice requirement of the [Inter-American Convention] as well as U.S. due
process law were violated when the district court upheld the validity of ‘notice’ by
way of Venezuelan newspaper of local Venezuelan circulation when Mr. Guarino
is a U.S. citizen residing and domiciled in Miami, Florida.”
Article V(1)(b) of the Inter-American Convention states the following:
1. The recognition and execution of the decision may be refused, at
the request of the party against which it is made, only if such party is
able to prove to the competent authority of the State in which
recognition and execution are requested . . .
b. That the party against which the arbitral decision has been made
was not duly notified of the appointment of the arbitrator or of the
arbitration procedure to be followed, or was unable, for any other
reason, to present his defense . . . .
To establish lack of notice as a defense to enforcement of an award, “the
party challenging the award must show that the arbitration procedures failed to
comport with this country’s standards of due process.” Yukos Capital S.A.R.L. v.
OAO Samaraneftegaz,
963 F. Supp. 2d 289, 296 (S.D.N.Y. 2013), aff’d 592 F.
App’x. 8 (2d Cir. 2014) (citing Parsons & Whittemore Overseas Co., Inc. v.
Societe Generale de L’Industrie Due Papier,
508 F.2d 969, 975 (2d Cir. 1974).
Roche asserts that Iutum and Guarino received notice by mail, email, and
publication. The district court found that the ACCC made several efforts to notify
Iutum and Guarino and did not clearly err in making this finding. On September
8
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 9 of 13
26, 2017, the ACCC mailed a notice of arbitration to Iutum at the Iutum’s
corporate address via DHL. DHL was unable to deliver the package and returned
it to sender. On April 30, 2018, the ACCC emailed Procedural Order No. 1 to
gerardo.guarino@iutum.com and gerardo@iutum.com informing that notifications
regarding arbitration developments would be made by mail. On May 11, 2018, the
ACCC again attempted to notify Iutum and Guarino by mail, mailing several
documents to the address listed on the purchase agreement via DHL. On May 16,
2018, the ACCC emailed the listed addresses a confirmation that documents were
mailed to them via DHL. DHL records reflect that the documents were delivered
and signed for by “Galvan” on June 4, 2018. On June 7, 2018, the ACCC emailed
both addresses a confirmation that mail was delivered to them on June 4, 2018. On
July 3, 2018, the ACCC emailed a notice of hearing to both email addresses
informing Guarino that the arbitration hearing would be held at the ACCC on July
16, 2018. On October 18, 2018, the ACCC emailed a notice to both addresses
informing Guarino that the arbitration proceedings terminated, and on November
14, 2018, a notice of the award was emailed. There is no evidence that the ACCC
received bounce back messages for any of the emails. Roche also published notice
of the arbitration in El Nacional, a Venezuelan newspaper, naming both Guarino
and Iutum as respondents.
9
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 10 of 13
The district court did not err in concluding that Guarino had notice of the
proceedings. As an initial matter, when Guarino signed the purchase agreement,
he consented to the arbitration being held in Venezuela pursuant to Venezuelan
law, and in accordance with the provision contained in the General Law of the
ACCC. When the ACCC found that notice by express mail was not possible, it
ordered Roche to provide notice of the arbitration proceeding in the national
circulation press in accordance with article 45 of the Rules of the ACCC. Guarino
consented to this form of notice.
However, in addition to the notice by publication, the ACCC attempted to
mail and email Iutum and Guarino multiple times to inform them of the arbitration
and acts in the case. Due process requires that notice be “‘reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.’” Mesa
Valderrama v. United States,
417 F.3d 1189, 1196-97 (11th Cir. 2005) (quoting
Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)).
Successful actual notice is not required; the adverse party need only prove an
attempt to provide actual notice. Id. at 1197. Roche and the ACCC sent mail
notifications to the business address listed on the purchase agreement and the
emails were sent to the email addresses Roche had on file. These repeated
10
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 11 of 13
attempts to notify Guarino of the arbitration do not violate due process because
they were reasonably calculated to notify Guarino of the arbitration proceedings.
C. Public Policy
Guarino last asserts the district court’s order “violated the public policy
exception to recognition . . . in recognizing a Venezuelan arbitral award that
ascribed personal liability under Venezuelan law to Mr. Guarino for a corporate
debt when Mr. Guarino did not agree to arbitrate or guarantee the debt and there
was no showing or basis to pierce the corporate veil under Florida law and ascribe
liability to the shareholders.”
Article V(2)(b) of the Inter-American Convention provides:
2. The recognition and execution of an arbitral decision may
also be refused if the competent authority of the State in which the
recognition and execution is requested finds . . .
(b) That the recognition or execution of the decision would be
contrary to the public policy (ordre public) of that State.
“The public-policy defense . . . is very narrow and is likewise to be construed
narrowly in light of the presumption favoring enforcement of international arbitral
awards.” Cvoro v. Carnival Corp.,
941 F.3d 487, 496 (11th Cir. 2019) (quotation
marks and alteration omitted). This defense “applies only when confirmation or
enforcement of a foreign arbitration award would violate the forum state’s most
basic notions of morality and justice.” Inversiones y Procesadora Tropical
11
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 12 of 13
INPROTSA, S.A. v. Del Monte Int’l GMBH,
921 F.3d 1291, 1306 (11th Cir. 2019)
(quotation marks omitted).
As discussed above, Guarino is bound under the theory of joint and several
liability pursuant to Venezuelan law. Guarino cites Florida case law to argue
Venezuelan law is offensive to notions of Florida public policy as it does not
comply with Florida’s corporate veil-piercing law. However, Guarino signed a
purchase agreement that stated it was subject to Venezuelan law on behalf of
Iutum. Guarino cannot argue the purchase agreement that explicitly states it is
subject to Venezuelan law should now be construed according to Florida law.
Guarino being jointly and severally liable does not offend public policy; rather,
Guarino’s arguments on this issue touch on something the Supreme Court has
expressly rejected—that only the law of the United States is adequate to resolve
international disputes. See Scherk v. Alberto-Culver Co.,
417 U.S. 506, 517 n.11
(1974) (“To determine that ‘American standards of fairness’ . . . must nonetheless
govern the controversy demeans the standards of justice elsewhere in the world,
and unnecessarily exalts the primacy of United States law over the laws of other
countries.”). The enforcement of this arbitration award does not violate public
policy.
12
USCA11 Case: 20-11420 Date Filed: 12/15/2020 Page: 13 of 13
III. CONCLUSION
We conclude that the agreement to arbitrate met the in-writing requirement,
Guarino received adequate notice, and recognition of the arbitral award does not
offend public policy. Thus, we affirm the district court’s confirmation of the
arbitral award.
AFFIRMED.
13
