Corporacion AIC, SA v. Hidroelectrica Santa Rita S.A. ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13039
____________________
CORPORACION AIC, SA,
Plaintiff-Appellant,
versus
HIDROELECTRICA SANTA RITA S.A.,
a Guatemalan company,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-20294-RNS
____________________
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2 Opinion of the Court 20-13039
Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges.
TJOFLAT, Circuit Judge:
This case involves the interplay between the Federal Arbi-
tration Act (“FAA”) and the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (“New York Conven-
tion”). We believe that our Circuit is out of line with Supreme
Court precedent, but we are powerless to change the course as a
three-judge panel. As a result, today, we must affirm the District
Court’s determination that it could not vacate an arbitral award
under the New York Convention on the exceeding powers ground.
In so doing, we hope that this case will be taken en banc where this
Court may overturn Inversiones y Procesadora Tropical
INPROTSA, S.A. v. Del Monte International GmbH, 921 F.3d 1291(11th Cir. 2019), and Industrial Risk Insurers v. M.A.N. Gu-
tehoffnungshutte GmbH, 141 F.3d 1434 (11th Cir. 1998), and hold
that under a correct understanding of Supreme Court precedent
the exceeding powers ground is a valid basis for vacatur under both
the New York Convention and the FAA. Until an en banc panel of
our Court takes up this issue, our hands are tied.
I.
In a nutshell, Corporacion AIC, SA (“AICSA”) and Hidroe-
lectrica Santa Rita S.A. (“HSR”), two Guatemalan companies,
signed a contract in March 2012 (and restated it in February 2013)
for the construction of a hydroelectric power plant in Guatemala.
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20-13039 Opinion of the Court 3
Under the terms of the contract, AICSA was responsible for creat-
ing a new power plant for HSR. However, in October 2013, AICSA
had to discontinue the project because HSR issued a force majeure
notice.1 Next, HSR sought reimbursement for the advance pay-
ments it had made to AICSA and ultimately commenced arbitra-
tion proceedings, as specified in the original contract, in the Inter-
national Court of Arbitration to recover them. AICSA sought dis-
missal of HSR’s claims and counterclaimed for damages, costs, re-
imbursements for its subcontractor, and attorney’s fees and ex-
penses. AICSA also sought to join one of its subcontractors to the
proceeding. The arbitration was held in Miami, Florida, and a split,
three-member arbitration panel denied AICSA’s request to join the
subcontractor to the arbitration and, in short, ruled for HSR on the
merits claims. The panel ordered AICSA to return about $7 million
and about €435,000 to HSR in advance payments while allowing
AICSA to keep what it had earned pursuant to the contract, about
$2.5 million and about €700,000.
Dissatisfied with the arbitration panel’s decision, AICSA ini-
tiated a case in the District Court, seeking to vacate the arbitral
award on the basis that the arbitration panel had exceeded its
1 A force majeure clause in a contract excuses performance in certain cases,
covering “events that may or may not happen, but whether they do is ‘beyond
the control of’” the contracting party. Stein v. Paradigm Mirasol, LLC, 586
F.3d 849, 858 (11th Cir. 2009).
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4 Opinion of the Court 20-13039
powers. 2 The District Court denied AICSA’s petition. It said that
Eleventh Circuit precedent foreclosed AICSA’s claim that a party
to a New York Convention arbitration could challenge an arbitra-
tion panel’s decision on the exceeding powers ground under 9
U.S.C. § 10(a)(4) of the FAA. So, the District Court declined to an-
alyze whether the arbitrators had indeed exceeded their powers in
the AICSA/HSR arbitration. AICSA timely appealed.
II.
We review de novo questions of law in a district court’s re-
fusal to vacate an arbitral award. First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 947–49, 115 S. Ct. 1920, 1926 (1995). We re-
view a district court’s factfinding for clear error. Bamberger Rosen-
heim, Ltd., (Israel) v. OA Dev., Inc., (United States), 862 F.3d 1284,
1286 (11th Cir. 2017). As a general rule, our review of an arbitra-
tion decision itself is extremely limited, “among the narrowest
known to the law,” for the very reason that arbitration is not litiga-
tion. AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc.,
508 F.3d 995, 1001 (11th Cir. 2007).
2 AICSA filed a Second Amended Petition and Motion on which the District
Court ultimately ruled. This is because of the activity that occurred after the
first arbitration award. The arbitration panel, at the request of HSR, issued a
further order regarding advance payment bonds that AICSA had to maintain,
after its initial award decision. Because we cannot address the merits of the
arbitration panel’s decisions, as we will explain infra, we do not dive deeper
into the arbitration panel’s rulings on the advance payment bonds.
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20-13039 Opinion of the Court 5
III.
There are two questions on appeal. First, may we, under
our precedent, decide that an arbitration panel exceeded its powers
in a non-domestic arbitration under the New York Convention?
And second, if so, did the arbitration panel in this case indeed ex-
ceed its powers? Because we are bound to answer the first question
in the negative, we cannot reach the merits of the second question.
Starting with the basics, arbitrations may be either domestic
or non-domestic (international). Chapter 1 of the FAA applies to
domestic arbitrations, and Chapter 2 of the FAA applies to non-do-
mestic arbitrations. Indus. Risk, 141 F.3d at 1439–40. Under Chap-
ter 2 of the FAA, the only domestic arbitration awards are those
arising out of a commercial relationship “entirely between citizens
of the United States” with enforcement in the United States. 9
U.S.C. § 202. An arbitration is non-domestic under the New York
Convention3 when either 1) the award was “made in a country
other than that in which enforcement of the award is sought,” or
3 The New York Convention is an international treaty, to which the United
States acceded in 1970, meant to “encourage the recognition and enforcement
of international arbitral awards” and to “relieve congestion in the courts and
to provide parties with an alternative method for dispute resolution that [is]
speedier and less costly than litigation.” Indus. Risk, 141 F.3d at 1440 (internal
citations omitted). Chapter 2 of the FAA, 9 U.S.C. §§ 201–208, implementing
the New York Convention, mandates enforcement of international arbitra-
tions in the United States and creates federal subject-matter jurisdiction over
any action arising under the New York Convention. Id.; see 9 U.S.C. § 203.
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6 Opinion of the Court 20-13039
2) the award is “not considered as domestic [] in the country where
enforcement of the award is sought.” Indus. Risk, 141 F.3d at 1440
(internal quotation marks omitted). The arbitration in the present
case is non-domestic (or international) for purposes of the New
York Convention and FAA because two foreign corporations are
arbitrating in Miami, Florida. See Indus. Risk, 141 F.3d at 1441 (ex-
plaining that we have jurisdiction to review arbitrations that are
“non-domestic,” that is, those that are “not entirely between citi-
zens of the United States,” under Chapter 2 of the FAA).
Now, things get trickier when we start trying to figure out
how the New York Convention and FAA work together. The New
York Convention “must be enforced according to its terms over all
prior inconsistent rules of law,” including Chapter 1 of the FAA ap-
plying to domestic arbitrations. Indus. Risk, 141 F.3d at 1440 (quot-
ing Sedco, Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co.
(Pemex), 767 F.2d 1140, 1145 (5th Cir. 1985)). At the same time,
under Chapter 2 of the FAA, “Chapter 1 [i.e., domestic law] applies
to actions and proceedings brought under” Chapter 2 “to the extent
that” Chapter 1 “is not in conflict” with Chapter 2 or the New York
Convention. 9 U.S.C. § 208; see GE Energy Power Conversion
France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct.
1637, 1645 (2020) (explaining that domestic law doctrines “fill gaps”
in the New York Convention). So, we have three potential bodies
of law here: 1) the New York Convention, the treaty itself; 2) Chap-
ter 2 of the FAA, the domestic law implementing the New York
Convention; and 3) Chapter 1 of the FAA, the domestic law usually
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20-13039 Opinion of the Court 7
governing domestic arbitrations, which may apply in international
arbitrations to the extent it does not conflict with the New York
Convention or Chapter 2 of the FAA.
Today, the parties disagree about the parameters of the New
York Convention’s terms. Article V of the New York Convention
provides seven grounds on which recognition and enforcement of
an international arbitration award may be refused. And, according
to Industrial Risk, an “arbitral award must be confirmed unless ap-
pellants can successfully assert one of the seven defenses against
enforcement of the award enumerated in Article V of the New
York Convention.”4 Indus. Risk, 141 F.3d at 1441; id. at 1441 n.8
(explaining that the New York Convention’s defenses against en-
forcement are “exclusive”). The burden of proof for establishing
one of these seven defenses lies with the appellants. Id. at 1442. In
Industrial Risk, which involved two foreign corporations arbitrat-
ing in Tampa, Florida, the appellants raised three grounds for va-
catur of the arbitration award, one under Article V(1)(d), one under
Article V(2)(b), and one ground recognized domestically 5 but not
4 For the full text of Article V, see infra Part IV. See Convention on the Recog-
nition and Enforcement of Foreign Arbitral Awards, art. 5, June 10, 1958, 21
U.S.T. 2517, 2520, 330 U.N.T.S. 3.
5 There are four statutory defenses to an arbitration’s enforcement under the
FAA:
1) where the award was procured by corruption, fraud, or undue
means;
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8 Opinion of the Court 20-13039
explicitly in the New York Convention—that the award was arbi-
trary and capricious. Id. at 1442–43. The Court addressed the first
two defenses under Articles V(1)(d) and V(2)(b) but declined to ad-
dress whether the award was arbitrary and capricious because it
was “not specified by the Convention.” Id. at 1443. In other words,
the Court refused to vacate an arbitral award based on anything
other than the New York Convention’s explicit carveouts in Article
V. See id.; see also 9 U.S.C. § 207 (“The 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 said Con-
vention.”).
2) where there was evident partiality or corruption in the arbitrators,
or either of them;
3) where the arbitrators were guilty of misconduct in refusing to post-
pone the hearing, upon sufficient cause shown, or in refusing to hear
evidence pertinent and material to the controversy; or of any other
misbehavior by which the rights of any party have been prejudiced; or
4) where the arbitrators exceeded their powers, or so imperfectly exe-
cuted them that a mutual, final, and definite award upon the subject
matter submitted was not made.
9 U.S.C. § 10(a). In addition, federal courts recognize two non-statutory
grounds for vacatur derived from the ones listed in the FAA: 1) the award is
arbitrary and capricious, and 2) the enforcement would be contrary to public
policy. Indus. Risk, 141 F.3d at 1446. The Industrial Risk court found it signif-
icant that the New York Convention contained a public policy exception in
Article V(2)(b) but not an arbitrary and capricious exception in determining
that the arbitrary and capricious ground could not be used to challenge a New
York Convention arbitration decision. Id.
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20-13039 Opinion of the Court 9
Significant for our purposes is the fact that the Industrial
Risk court did not consider whether the “arbitrary and capricious”
defense was tucked into Article V(1)(e). Article V(1)(e) states:
(1) Recognition and enforcement of the award may
be refused, at the request of the party against whom
it is invoked, only if that party furnishes to the com-
petent authority where the recognition and enforce-
ment is sought, proof that:
....
(e) The award has not yet become binding on the par-
ties, or has been set aside or suspended by a compe-
tent authority of the country in which, or under the
law of which, that award was made.
New York Convention, Art. V(1)(e). Article V(1)(e) suggests
that our domestic courts and law have some role to play when ei-
ther the United States is the “country in which” the arbitration oc-
curred or when United States’ law governed the award. Under Ar-
ticle V(1)(e), our courts may apparently set aside or suspend an
award when the United States was either the location of the arbi-
tration or was the source of law for the arbitration. And it is con-
ceivable that domestic law—that is, the arbitrary and capricious
standard in the Industrial Risk case—could govern in such a case.
See 9 U.S.C. § 208 (“Chapter 1 [of the FAA, i.e., domestic law] ap-
plies to actions and proceedings brought under [Chapter 2 of the
FAA] to the extent that [Chapter 1] is not in conflict with [Chapter
2] or the [New York] Convention.”). But the Industrial Risk court
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10 Opinion of the Court 20-13039
left this analysis untouched and implicitly rejected the proposition
that domestic defenses to enforcement of an arbitration award
could be used under Article V(1)(e).
Sixteen years later, the Supreme Court touched on Article
V’s connection to the FAA in BG Group, PLC v. Republic of Ar-
gentina, 572 U.S. 25, 134 S. Ct. 1198 (2014). The question before
the Supreme Court in that case was “whether a court of the United
States, in reviewing an arbitration award made under the [the ap-
plicable treaty], should interpret and apply the local litigation re-
quirement [of that treaty] de novo, or with the deference that
courts ordinarily owe arbitration decisions.” 572 U.S. at 29, 134 S.
Ct. at 1203–04. The specific context was a dispute between a Brit-
ish investment group, BG Group, and Argentina based on the in-
vestment group’s part ownership of an Argentine gas company. Id.
at 29, 134 S. Ct. at 1204. BG Group’s contention was that Argen-
tina’s adjustment of calculating gas tariffs in pesos rather than dol-
lars (when the exchange rate at the time was three pesos to one
dollar) violated an investment treaty that existed between the
United Kingdom and Argentina. Id. at 29–30, 134 S. Ct. at 1204.
The treaty called for arbitration in that context. Id. BG Group and
Argentina agreed to arbitration in Washington, D.C., and the arbi-
tration panel ultimately awarded BG Group $185 million in dam-
ages on the basis that Argentina had denied BG Group fair treat-
ment. Id. at 31, 134 S. Ct. at 1205.
After the arbitration award was issued, BG Group sought en-
forcement of the award in federal district court, and Argentina
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20-13039 Opinion of the Court 11
sought to vacate the award, in part based on the ground that the
arbitrators lacked jurisdiction under the FAA because the arbitra-
tors “exceeded their powers.” Id. at 31–32, 134 S. Ct. at 1205; see 9
U.S.C. § 10(a)(4). The Supreme Court ultimately held that the in-
terpretation of the local litigation requirement was to be decided
by the arbitrators and that courts could only review the arbitrators’
determinations on such matters “with considerable deference.” Id.
at 41, 134 S. Ct. at 1210.
For our purposes, what matters is not the ultimate decision
on the local litigation requirement of that treaty, but rather how
the Supreme Court then proceeded to evaluate the arbitrators’ de-
terminations about the local litigation requirement under a highly
deferential standard of review. The Supreme Court explained that
it could not “agree with Argentina that the arbitrators ‘exceeded
their powers’ in concluding they had jurisdiction.” Id. at 44, 134 S.
Ct. at 1212 (internal quotation marks omitted) (quoting 9 U.S.C.
§ 10(a)(4)). That is, the Supreme Court evaluated an international
arbitration award on a ground not expressly mentioned in the New
York Convention’s Article V, but rather one mentioned in the
FAA—that the arbitration panel exceeded its powers. The Su-
preme Court’s holding as to the exceeding powers ground implic-
itly contradicted our previous ruling in Industrial Risk that only
those express grounds listed in Article V could allow a domestic
court to vacate an international arbitration award.
Although reluctant to say that the Supreme Court implicitly
overruled Industrial Risk in BG Group, our opinion in Bamberger
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12 Opinion of the Court 20-13039
Rosenheim, Ltd., (Israel) v. OA Development, Inc., (United States),
acknowledged the tension between the two decisions. 862 F.3d
1284, 1287 n.2 (11th Cir. 2017) (citing both decisions and an influ-
ential Second Circuit decision and explaining that it was “as-
sum[ing], without deciding, that [9 U.S.C.] § 10 applies to the award
in the present case”). In that case, we reviewed a non-domestic
arbitration that took place in Atlanta, Georgia. Bamberger, 862
F.3d at 1286. The appellant sought vacatur of the arbitration award
under Article V(1)(d), which provides for vacatur when “the arbi-
tral procedure was not in accordance with the agreement of the
parties,” and under 9 U.S.C. § 10(a)(4) of the FAA, which provides
for vacatur when “the arbitrator exceeded his powers.” Id. at 1287
(internal alterations and citations omitted); see Art. V(1)(d). Be-
cause the appellant’s claims in that case were identical under both
Article V(1)(d) and 9 U.S.C. § 10(a)(4), the Court assumed without
deciding that § 10 of the FAA applied in a context where the Court
was reviewing a non-domestic arbitration award and the United
States had been the location of the arbitration. Id. at 1287 & n.2.
Rightfully so, the Bamberger court left for another day the ultimate
question of whether BG Group overruled Industrial Risk, since the
FAA claim and Article V claim were identical.
That day would come with the Court’s opinion in Inver-
siones y Procesadora Tropical INPROTSA, S.A., v. Del Monte Int’l
GmbH, 921 F.3d 1291 (11th Cir. 2019). This case arose out of an
arbitration held in Miami, Florida, between two foreign corpora-
tions. Inversiones, 921 F.3d at 1295. After deciding that the district
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20-13039 Opinion of the Court 13
court had subject-matter jurisdiction over the case, the Court
turned to the grounds for vacatur the appellant raised. Id. at 1301.
The appellants argued that Industrial Risk was wrongly decided
and that the Supreme Court’s decision in BG Group abrogated it.
Id. The Court dismissed the appellant’s arguments in two ways.
Id. at 1301–02. First, it said that even if Industrial Risk had been
wrongly decided, it was binding under our prior-panel precedent
rule unless a Supreme Court case or en banc panel of this Court
had clearly overruled the relevant precedent. Id. at 1301. Second,
focusing on the narrow question of the local litigation requirement
at issue in BG Group, the Court held that BG Group did not clearly
overrule Industrial Risk and at most created indirect tension with
Industrial Risk. Id. at 1302. With that, the Court affirmed the hold-
ing of Industrial Risk that the New York Convention’s Article V
supplies the exclusive grounds for vacating an international arbitral
award. Id. And, then, in dicta, the Court proceeded to explain why
vacatur would be inappropriate in that case, even if the appellants
were right that BG Group overruled Industrial Risk. Id. at 1302–
04.
Now, we are bound to apply Inversiones. Because of Inver-
siones, we are compelled to say that we may not vacate the arbi-
tration award in this case between AICSA and HSR on the exceed-
ing powers ground, a domestic ground for vacatur not explicitly
listed in Article V of the New York Convention. Consequently, we
cannot reach the merits of whether vacatur would be appropriate
in this case on the exceeding powers ground. We are dissatisfied
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14 Opinion of the Court 20-13039
with the conclusion that we cannot review the international arbi-
tration award in this case on the exceeding powers ground because
we think it is inconsistent with the thrust of BG Group. Below, we
offer an alternative path forward if an en banc panel of this Court
chooses to take up this case.
IV.
We missed an important distinction in Industrial Risk that
set us on a path that ended up being out of sync with the Supreme
Court—that of primary and secondary jurisdiction under Article V
of the New York Convention. Under the New York Convention,
a country has primary jurisdiction when it is either the location of
the arbitration or its laws were used to conduct the arbitration. See
Art. V(1)(e). On the other hand, a country has secondary jurisdic-
tion when it is simply asked to recognize and enforce a foreign ar-
bitration award it had nothing to do with otherwise. See, e.g., Art.
V(2)(b) (providing an example of when a country is only being
asked to enforce a foreign arbitration award). To flesh out this dis-
tinction, we return to the reasoning of Industrial Risk in holding
that there was not an arbitrary-and-capricious exception to enforce-
ment of a New York Convention arbitration, even though such an
exception existed for domestic arbitrations as derived from Chap-
ter 1 of the FAA.
The Court in Industrial Risk looked to Chapter 2 of the FAA,
which requires a federal court to “confirm [an international arbitral
award] unless it finds one of the grounds for refusal or deferral of .
. . . enforcement of the award specified in the [New York]
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20-13039 Opinion of the Court 15
Convention.” Indus. Risk, 141 F.3d at 1446 (quoting 9 U.S.C. § 207)
(internal quotation marks omitted and alterations in original). The
Court found it decisive that a public policy exception is included in
Article V(2)(b) but that an arbitrary-and-capricious exception is not
explicitly listed in Article V of the New York Convention, when it
reasoned that the appellant could not challenge a New York Con-
vention arbitration award on arbitrary-and-capricious grounds. In
other words, for the Industrial Risk court, the inclusion in Article
V of one defense recognized at domestic law but not another ex-
cluded the one not listed, something like the expresio unius canon
we use at domestic law. See In re Cumbess, 960 F.3d 1325, 1334
(11th Cir. 2020) (explaining that expresio unius “justifies the infer-
ence that items not mentioned were excluded by choice, not inad-
vertence” (internal quotation marks, alterations, and citation omit-
ted)).
Rightly, Industrial Risk acknowledged that Article V pro-
vides the exclusive grounds for vacating an arbitral award under
the New York Convention. But, wrongly, the Industrial Risk court
(which included me) failed to consider that domestic defenses to
enforcement of arbitration awards were nestled in Article V(1)(e).
That is because we did not note the difference between primary
and secondary jurisdiction. We provide Article V for reference
here because it is essential to see the structure of Article V to un-
derstand the difference between primary and secondary jurisdic-
tion:
Article V reads:
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16 Opinion of the Court 20-13039
(1) Recognition and enforcement of the award may
be refused, at the request of the party against whom
it is invoked, only if that party furnishes to the com-
petent authority where the recognition and enforce-
ment is sought, proof that:
(a) The parties to the agreement . . . were, un-
der the law applicable to them, under some in-
capacity, or the said agreement is not valid un-
der the law to which the parties have subjected
it or, failing any indication thereon, under the
law of the country where the award was made;
or
(b) The party against whom the award is in-
voked was not given proper notice of the ap-
pointment of the arbitrator or of the arbitra-
tion proceedings or was otherwise unable to
present his case; or
(c) The award deals with a difference not con-
templated by or not falling within the terms of
the submission to arbitration, or it contains de-
cisions on matters beyond the scope of the sub-
mission to arbitration, provided that, if the de-
cisions on matters submitted to arbitration can
be separated from those not so submitted, that
part of the award which contains decisions on
matters submitted to arbitration may be recog-
nized and enforced; or
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20-13039 Opinion of the Court 17
(d) The composition of the arbitral authority
or the arbitral procedure was not in accord-
ance with the agreement of the parties, or, fail-
ing such agreement, was not in accordance
with the law of the country where the arbitra-
tion took place; or
(e) The award has not yet become binding on
the parties, or has been set aside or suspended
by a competent authority of the country in
which, or under the law of which, that award
was made.
(2) Recognition and enforcement of an arbitral award
may also be refused if the competent authority in the
country where recognition and enforcement is
sought finds that:
(a) The subject matter of the difference is not
capable of settlement by arbitration under the
law of that country; or
(b) The recognition or enforcement of the
award would be contrary to the public policy
of that country.
New York Convention, Art. V. Compare Article V(1)(e) to
the rest of Article V. Article V(1)(e) defines primary jurisdiction.
The United States has primary jurisdiction when the United States
is the location of the arbitral award or when United States law is
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18 Opinion of the Court 20-13039
used to decide the arbitration dispute. 6 When the United States has
primary jurisdiction, based on Article V, a competent authority,
i.e., the District Court here, has the authority to “set aside” an ar-
bitration award, rather than just refuse to enforce it. The implica-
tion is that a district court would set aside such an arbitration award
based on domestic law such as Chapter 1 of the FAA. Otherwise,
Article V(1)(e) is circular and redundant. If Article V(1)(e) did not
incorporate domestic law, it would say that a district court could
refuse to enforce an arbitration award if it could set aside an arbi-
tration award under the other provisions of Article V. That would
be odd indeed because Article V(1) already says that refusal of en-
forcement is allowed if made on one of the bases of Article V.7
6 See also Art. V(1)(a), (1)(d) (recognizing the importance of the location of
arbitration and allowing vacatur when there is some arbitration defect under
the law of the country in which the arbitration award was rendered).
7 Another view of Article V(1)(e) is that it is simply a timeliness and finality
provision—that an international arbitration award can be refused enforce-
ment (presumably in another country from where the arbitration was held or
whose law was used) only if a competent authority, in the country where the
arbitration was held or the law of which was used, has already set aside or
suspended that award in accordance with Article V. See Ministry of Def. &
Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Def.
Sys., Inc., 665 F.3d 1091, 1101 n.6 (9th Cir. 2011). We do not think that reading
is plausible based on the Supreme Court’s decision in BG Group, where the
Supreme Court expressly contemplates that the presumptions of federal law
will be used in a case where the United States had primary jurisdiction. See
BG Grp., 572 U.S. at 37, 134 S. Ct. at 1208–09.
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20-13039 Opinion of the Court 19
Although not calling it as such, the Supreme Court nodded
to the idea of primary jurisdiction in BG Group. See BG Grp., 572
U.S. at 37, 134 S. Ct. at 1208. (“And where, as here, a federal court
is asked to interpret [a treaty’s] intent pursuant to a motion to va-
cate or confirm an award made in the United States under the Fed-
eral Arbitration Act, it should normally apply the presumptions
supplied by American law.”). The Supreme Court then cited to
Article V(1)(e) for the proposition that an award may be “set aside
or suspended by a competent authority of the country in which, or
under the law of which, that award was made.” Id., 134 S. Ct. at1208–09 (also citing Kenneth J. Vandevelde, Bilateral Investment
Treaties: History, Policy, and Interpretation 446 (2010), for the
proposition that arbitral awards pursuant to treaties are “subject to
review under the arbitration law of the state where the arbitration
takes place” and Christopher Dugan et al., Investor-State Arbitra-
tion 636 (2008), for the proposition that “national courts and the
law of the legal situs of arbitration control a losing party’s attempt
to set aside [an] award”) (alteration in original)).
In essence, the Supreme Court interpreted Article V(1)(e) as
conferring a special kind of reviewing power to courts with pri-
mary jurisdiction, where domestic law plays a unique role in eval-
uating whether an international arbitral award should be vacated.
That role stands in contrast to the role courts play when a country
has secondary jurisdiction—that is, when a country’s courts may
only refuse to enforce rather than annul an award. See Karaha Bo-
das Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi
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20 Opinion of the Court 20-13039
Negara, 364 F.3d 274, 287–88 (5th Cir. 2004). Secondary jurisdic-
tion is best illustrated by taking a look at Article V again. We are
out of Article V(1)(e) territory—that is, we are not assuming that
the arbitration was conducted in the country of the competent au-
thority, nor are we assuming that the laws of the country of the
competent authority were used for the arbitration. We are simply
assuming a competent authority is being asked to recognize or en-
force an arbitration award. In that case, under Article V, the com-
petent authority could refuse to enforce an award if there were an
explicit ground for vacatur in Article V. 9 U.S.C. § 207 (“The 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 said Convention.”). In other words, when a country has sec-
ondary jurisdiction, the review of the substance of the arbitral
award is necessarily more limited than when a country has primary
jurisdiction, and a court may refuse to enforce—but not annul—
the award. See Art. V(1)(e); 9 U.S.C. § 208. 8 And, its necessary
8 In other words, 9 U.S.C. § 207, which requires that a district court confirm a
New York Convention award unless “it finds one of the grounds for refusal or
deferral of recognition or enforcement of the award specified in the [New
York] Convention,” must be read in conjunction with 9 U.S.C. § 208, which
allows a district court to apply domestic arbitration law as codified in Chapter
1 of the FAA, to the extent it does not conflict with Chapter 2 or the New York
Convention. If we read Article V(1)(e) as allowing an award to be set aside on
domestic law grounds, then we give effect to both § 207 and § 208 of the FAA.
Under the reasoning of Industrial Risk, we have essentially nullified § 208, to
the extent it contemplates the use of domestic law in international arbitra-
tions.
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20-13039 Opinion of the Court 21
limit, based on the text and structure of Article V, is the explicit
grounds listed in Article V. And that makes sense.
The difference between primary and secondary jurisdiction
is a recognition that when a country’s laws are being used or it is
the location of an arbitration, it has more of an interest in the out-
come of an arbitration and the substance of an arbitration award
than a country that is simply being asked to enforce an award it had
nothing to do with in the first place. See Leonard V. Quigley, Ac-
cession by the United States to the United Nations Convention on
the Recognition and Enforcement of Foreign Arbitral Awards, 70
Yale L.J. 1049, 1070 (1961) (explaining that Article V(1)(e) “fails to
specify the grounds upon which the rendering State may set aside
or suspend the award. While it would have provided greater relia-
bility to the enforcement of awards under the Convention had the
available grounds been defined in some way, such action would
have constituted meddling with national procedure for handling
domestic awards, a subject beyond the competence of the Confer-
ence”); Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc., 126
F.3d 15, 22 (2d Cir. 1997) (“What the Convention did not do . . .
was provide any international mechanism to insure the validity of
the award where rendered. This was left to the provisions of local
law. The [New York] Convention provides no restraint whatsoever
on the control functions of local courts at the seat of arbitration.”
(citing W. Laurence Craig, Some Trends and Developments in the
Laws and Practice of International Commercial Arbitration, 30
Tex. Int’l L.J. 1, 9 (1995))).
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22 Opinion of the Court 20-13039
So, what happened in Industrial Risk is the Court treated all
cases of vacatur under Article V like secondary jurisdiction cases.
And now we know under BG Group that the Supreme Court does
not approve of that approach. See BG Grp., 572 U.S. at 37, 134 S.
Ct. at 1208; see also Outokumpu, 140 S. Ct. at 1645 (looking at Ar-
ticle II(3) of the New York Convention and explaining that “[a]gain,
the [New York] Convention requires courts to rely on domestic
law to fill the gaps; it does not set out a comprehensive regime that
displaces domestic law.”). Many of our sister circuits are in align-
ment with the Supreme Court. See, e.g., TermoRio S.A. E.S.P. v.
Electranta S.P., 487 F.3d 928, 935 (D.C. Cir. 2007) (recognizing that
only when a country has primary jurisdiction may a court annul on
domestic law grounds under the New York Convention); Jacada
(Europe), Ltd., v. Int’l Mktg. Strategies, Inc., 401 F.3d 701, 709 (6th
Cir. 2005) (“Because this award was made in the United States, we
can apply domestic law, found in the FAA, to vacate the award.”)
(abrogated on other grounds by Hall St. Assoc., LLC v. Mattel, Inc.,
552 U.S. 576, 128 S. Ct. 1396 (2008)); Karaha Bodas, 364 F.3d at 287–
88 (the Fifth Circuit explaining the difference between primary and
secondary jurisdiction under the New York Convention); Ario v.
Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of
Acct., 618 F.3d 277, 291 (3d Cir. 2010) (the Third Circuit acknowl-
edging broader review when the United States is the location of
arbitration or its laws are used); Yusuf Ahmed Alghanim & Sons,
Inc., 126 F.3d at 23 (the Second Circuit explaining that “[f]rom the
plain language and history of the [New York] Convention, it is thus
apparent that a party may seek to vacate or set aside an award in
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20-13039 Opinion of the Court 23
the state in which, or under the law of which, the award is ren-
dered. Moreover, the language and history of the [New York] Con-
vention make it clear that such a motion is to be governed by do-
mestic law of the rendering state, despite the fact that the award is
nondomestic within the meaning of the [New York] Conven-
tion.”). We should join our sister circuits in acknowledging the
role of domestic law in international arbitrations under the FAA
and the New York Convention.
For these reasons, we think we’ve gotten it wrong in Indus-
trial Risk and Inversiones, and an en banc panel of this Court
should hold that we can review international arbitration awards
based on Chapter 1 of the FAA under Article V(1)(e) of the New
York Convention when the United States has primary jurisdiction.
But for now, we affirm.
AFFIRMED.
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20-13039 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, Concurring:
The New York Convention encompasses two types of arbi-
tral awards—(i) awards made abroad, i.e., those “made in the terri-
tory of a State other than the State where the recognition and en-
forcement . . . [is] sought,” and (ii) non-domestic awards, i.e., those
“not considered as domestic awards in the State where their recog-
nition and enforcement are sought.” Convention on the Recogni-
tion and Enforcement of Foreign Arbitral Awards, Art. 1(1), June
10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 4739. Under the Federal Ar-
bitration Act, a non-domestic award is one “arising out of a legal
relationship . . . which is considered as commercial,” so long as the
relationship is not “entirely between citizens of the United States.”
9 U.S.C. § 202. The parties do not dispute that the award in this
case is non-domestic, and accordingly that it is a New York Con-
vention award.
I agree with the court that we are bound by Industrial Risk
Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434,
1445–46 (11th Cir. 1998) (holding that Article V of the New York
Convention—instead of the Federal Arbitration Act, 9 U.S.C.
§ 10—provides the grounds for the vacatur of an arbitral award un-
der the Convention), and by Inversiones y Procesadora Tropical
INPROTSA, S.A. v. Del Monte International GmbH, 921 F.3d
1291, 1301–02 (11th Cir. 2019) (reaffirming Industrial Risk ). I also
agree that those aspects of Industrial Risk and Inversiones were
wrongly decided, and that we should convene en banc to correct
the error. I write separately to propose a different way of looking
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2 JORDAN, J., Concurring 20-13039
at the vacatur of awards encompassed by the New York Conven-
tion, understanding that I cover some of the same ground as the
court.
I
As a general matter, once an international arbitral award is
issued the parties can ask a national court to enforce or vacate the
award. Various treaties regulate the enforcement of international
arbitral awards, and one of them is the New York Convention. Ar-
ticle V of the Convention provides the grounds on which a court
can refuse to recognize and enforce an award encompassed by the
Convention.
Corporación AIC argues that it can seek vacatur of the arbi-
tral award under the grounds listed in § 10 of the FAA because they
are incorporated into the New York Convention through its Article
V(1)(e), and the court today seems to agree with that understand-
ing. Hidroeléctrica Santa Rita, relying on Industrial Risk and Inver-
siones, responds that the award can be vacated only under the
grounds listed in Article V. In my view, Corporación AIC is cor-
rect, but for the wrong reason. It can invoke § 10’s vacatur grounds
not because they are incorporated through Article V(1)(e), but be-
cause they apply directly to the vacatur of a New York Convention
award made in the United States.
A
It has been said that “one cannot understand the Constitu-
tion’s meaning without first considering the underlying depth of
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20-13039 JORDAN, J., Concurring 3
historical experience, including the dangers the Constitution was
meant to prevent.” Philip Hamburger, Vermeule Unbound, 94
Tex. L. Rev. 204, 215 n.46 (2016). The New York Convention sim-
ilarly cannot be understood without an appreciation of its history
and framework. I therefore begin by detailing what led to the
adoption of the Convention and its binary framework.
Before the New York Convention was adopted in 1958, the
Geneva Protocol on Arbitration Clauses, Sept. 24, 1923, 27
L.N.T.S. 157, and the Geneva Convention on the Execution of For-
eign Arbitral Awards, Sept. 26, 1927, 92 L.N.T.S. 301—the Geneva
Treaties—provided the framework for international arbitrations.
The Geneva Protocol required all signatory States to enforce arbi-
tral agreements, but it mandated enforcement of arbitral awards
only in the seat of arbitration (i.e., the country in which the award
was rendered). See Domenico Di Pietro & Martin Platte, Enforce-
ment of International Arbitration Awards: The New York Conven-
tion of 1958 15 (2001); Nigel Blackaby et al., Redfern and Hunter
on International Arbitration 70–71 (5th ed. 2009).
Relevant for our purposes, the Geneva Protocol provided
that arbitral proceedings were governed by the parties’ agreement
and the law of the arbitral seat. See Geneva Protocol at Art. 2. It
also directed the seat of arbitration to ensure the execution (or not)
of arbitral awards made in its territory “in accordance with the pro-
visions of its national laws.” Id. at Art. 3.
The Geneva Convention broadened the scope of the Ge-
neva Protocol by providing for the recognition and enforcement of
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4 JORDAN, J., Concurring 20-13039
arbitral awards in countries other than the seat. See Di Pietro, In-
ternational Arbitration Awards, at 15; Blackaby, International Ar-
bitration, at 71. Unlike the Geneva Protocol, which addressed the
execution of awards at the arbitral seat and left the particulars to
domestic law, the Geneva Convention enumerated the grounds on
which recognition and enforcement could be refused abroad. See
Geneva Convention at Arts. 2–3. For example, it prohibited the
enforcement of awards that had been vacated at the seat of arbitra-
tion. See id. at Art. 2(a).
The Geneva Treaties thereby established a binary frame-
work in which two jurisdictions were relevant to the life of inter-
national arbitral awards. They also created obstacles to the recog-
nition and enforcement of such awards. Arguably the highest hur-
dle was the Geneva Convention’s requirement that an award be
recognized and enforced only if it was already “final in the country
in which it ha[d] been made.” Id. at Art. 1(d). That requirement,
known as the “double exequatur,” subjected the enforcement of
awards made abroad to their recognition in both the arbitral seat
and the enforcement jurisdiction. See Yusuf Ahmed Alghanim &
Sons v. Toys “R” Us, Inc., 126 F.3d 15, 22 (2d Cir. 1997); Certain
Underwriters at Lloyd’s London v. Argonaut Ins. Co., 500 F.3d 571,
576 (7th Cir. 2007); Albert Jan van den Berg, The New York Arbi-
tration Convention of 1958: Towards a Uniform Judicial Interpre-
tation 333 (1981). The double exequatur made the recognition and
enforcement of awards issued abroad excessively burdensome. See
Yusuf, 126 F.3d at 22; Jan Paulsson, Enforcing Arbitral Awards
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20-13039 JORDAN, J., Concurring 5
Notwithstanding Local Standard Annulments, 6 Asia Pac. L. Rev.
1, 8 (1998).
B
The New York Convention replaced the Geneva Treaties
with the goal of facilitating the recognition and enforcement of in-
ternational arbitral awards. See Karaha Bodas Co., L.L.C. v. Perus-
ahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357,
366–67 (5th Cir. 2003); Paulsson, Local Standard Annulments, 6
Asia Pac. L. Rev. at 7. It accomplished that by, among other things,
eliminating the double exequatur. See Karaha Bodas, 335 F.3d at367 n.41; Yusuf, 126 F.3d at 22; van den Berg, The New York Arbi-
tration Convention, at 9; Emmanuel Gaillard & John Savage, Fou-
chard Gaillard Goldman on International Commercial Arbitration
971 (1999). Although the New York Convention permits the denial
of recognition and enforcement of awards that have been vacated
at the country of origin, it does not require the recognition of
awards at that country for enforcement elsewhere. See New York
Convention at Art. V(1)(e) (“Recognition and enforcement of the
award may be refused . . . [if] [t]he award . . . has been set aside or
suspended by a competent authority of the country in which, or
under the law of which, that award was made.”) (emphasis added).
See also Reinmar Wolff, The New York Convention 356 (Hart Pub-
lishing 2012) (“The main purpose of Article V(1)(e) was to remedy
the shortcomings of the Geneva Convention of 1923, the most
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6 JORDAN, J., Concurring 20-13039
onerous of which was the double exequatur requirement.”) (em-
phasis and internal citation marks omitted). 1
The New York Convention modified the framework estab-
lished by the Geneva Treaties (e.g., by eliminating the double exe-
quatur), but it did not abolish that framework. Under the New
York Convention, the framework remains binary and allocates dif-
ferent responsibilities and measures of control to different jurisdic-
tions. See Karaha, 335 F.3d at 368 (explaining that an “important
aspect of the New York Convention is its assigning of different roles
to national courts to carry out the aims of the treaty”).
American courts refer to the country of origin as the primary
jurisdiction. The arbitral law of the primary jurisdiction (known as
the lex arbitri) governs the arbitration. See Karaha Bodas Co.,
L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara, 364 F.3d 274, 291 (5th Cir. 2004); Born, International Arbi-
tration: Law and Practice, at 37; Blackaby, International Arbitra-
tion, at 173–77. And, as recognized by the New York Convention,
only the primary jurisdiction can vacate an arbitral award. See
New York Convention at Arts. V(1)(e) & VI. See also BG Group,
PLC v. Republic of Argentina, 572 U.S. 25, 37 (2014) (“[T]he
1 The term “country of origin” is broader than the term “seat of arbitration.”
Under the New York Convention, the country of origin can be either the seat
of arbitration or, in rare cases, the country whose laws the parties agreed
would govern the arbitration. See New York Convention at Art. V(1)(e). See
also Gary Born, International Arbitration: Law and Practice 315–17 (2d ed.
2016).
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20-13039 JORDAN, J., Concurring 7
national courts and the law of the legal situs of arbitration control
a losing party’s attempt to set aside [an] award.”) (internal quota-
tion marks omitted); Karaha, 364 F.3d at 287 (“Only a court in a
country with primary jurisdiction over an arbitral award may annul
that award.”); Yusuf, 126 F.3d at 23 (explaining that under the New
York Convention “a party may seek to vacate or set aside an award
in the state in which, or under the law of which, the award is ren-
dered”); M & C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d
844, 849 (6th Cir. 1996) (same); Jan Paulsson, The Role of Swedish
Courts in Transnational Commercial Arbitration, 21 Va. J. Int’l L.
211, 242 (1981) (“[T]he fact is that setting aside awards under the
New York Convention can take place only in the country in which
the award was made.”); van den Berg, The New York Arbitration
Convention, at 20 (stating that Articles V(1)(e) and VI “affirm the
well-established principle of current international commercial arbi-
tration that the court of the country of origin is exclusively compe-
tent to decide on the setting aside of the award”). 2
2 For our purposes, the terms “vacatur,” “set aside,” and “annulment” are syn-
onymous. See Restatement of the Law, U.S. Law of Int’l Com. Arbitration
and Investor-State Arbitration § 1.1 cmt. pp (ALI Proposed Final Draft 2019)
(“Restatement of International Arbitration”). The Proposed Final Draft of the
Restatement was approved by the American Law Institute’s Council and
membership, and represents the official position of the ALI until publication
of the official text. See Restatement of The U.S. Law of International Com-
mercial and Investor–State Arbitration Is Approved, The American Law Insti-
tute (May 20, 2019), https://www.ali.org/news/articles/restatement-us-law-
international-commercial-and-investorstate-arbitration-approved/.
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8 JORDAN, J., Concurring 20-13039
A request to vacate is a challenge to the validity of the arbi-
tral award. See Blackaby, International Arbitration, at 626. Subject
to the particularities of the lex arbitri, a vacated award is generally
a nullity in the primary jurisdiction. See Restatement of Interna-
tional Arbitration, at § 1.1 cmt. pp & § 4.1 cmt. d.; Blackaby, Inter-
national Arbitration, at 618. Vacatur also has legal consequences
internationally, as it is a ground on which recognition and enforce-
ment of the vacated award can be refused. See New York Conven-
tion at Art. V(1)(e). See also Blackaby, International Arbitration, at
586 (“If an award is set aside or annulled by the relevant court, it
will usually be treated as invalid and accordingly unenforceable not
only by the courts of the seat of arbitration but also by national
courts elsewhere.”) (internal footnote omitted).
The country of recognition and enforcement is, in the par-
lance of American courts, the secondary jurisdiction. Unlike the
primary jurisdiction, the secondary jurisdiction chooses only be-
tween recognizing and enforcing an international arbitral award
and refusing to do so. See Karaha, 335 F.3d at 369 (explaining that
“a court of secondary jurisdiction[,] under the New York Conven-
tion, [is] charged only with enforcing or refusing to enforce a for-
eign arbitral award”). 3
3 Sometimes the same country is the primary and secondary jurisdiction. For
example, parties to an international arbitration seated in the United States can
seek to vacate, request to recognize and enforce, and oppose the recognition
and enforcement of a non-domestic award (such as the award in this case) in
the United States. All those requests can be lodged in one proceeding. See,
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20-13039 JORDAN, J., Concurring 9
Recognition and enforcement seeks to give effect to the
award. See Blackaby, International Arbitration, at 626. The term
“recognition and enforcement” means the reduction to a judgment
of a New York Convention award. See CBF Indústria de Gusa S/A
v. AMCI Holdings, Inc., 850 F.3d 58, 72 (2d Cir. 2017). As opposed
to the vacatur of an award, the legal effect of the recognition and
enforcement (or the denial of recognition and enforcement) of an
award is limited to the secondary jurisdiction that ruled on the re-
quest. See Blackaby, International Arbitration, at 632 (“The imme-
diate consequence of a refusal to enforce an award is that the win-
ning party fails to get what it wants; namely, seizure of the loser’s
assets in the place in which enforcement is sought . . . [I]t should be
borne in mind that it may still have an award that can be enforced
in another State.”).4
e.g., Nitram, Inc. v. Indus. Risk Insurers, 848 F. Supp. 162, 163–64 (M.D. Fla.
1994), aff’d sub nom. Indus. Risk, 141 F.3d at 1450–51; Zeiler v. Deitsch, 500
F.3d 157, 163 (2d Cir. 2007). When that occurs, the court considering the par-
ties’ requests performs a “double role,” exercising primary jurisdiction with
respect to a petition/motion to vacate and secondary jurisdiction when con-
sidering whether to recognize and enforce the non-domestic award. See id. at
165 n.6.
4 Strictly speaking, “recognition” and “enforcement” are distinct concepts.
“‘Recognition’ is a determination by a court or other tribunal that an interna-
tional arbitral award is entitled to be treated as binding.” Restatement of In-
ternational Arbitration, at § 1.1 cmt. nn. It can take place by itself, such as
when a party relies on an award’s res judicata effect as a defense. See Blackaby,
International Arbitration, at 627–28. “‘Enforcement’ is the reduction to a judg-
ment of an international arbitral award.” Restatement of International Arbi-
tration, at § 1.1 cmt. m. Enforcement is offensive, and an enforced award is
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10 JORDAN, J., Concurring 20-13039
II
With that framework in mind, I turn to the parties’ dispute
about whether the grounds for vacatur of a New York Convention
award are found in § 10 of the FAA or Article V of the Convention.
In my view, § 10 supplies the vacatur grounds. But, contrary to
Corporación AIC’s contention, that is not because they are incor-
porated into the New York Convention through Article V(1)(e).
Instead, § 10’s grounds apply directly to the vacatur of a New York
Convention award made in the United States.
one that, necessarily, has been recognized. See id.; Blackaby, International
Arbitration, at 627; CBF, 850 F.3d at 72. Accordingly, in practice “enforce-
ment” is synonymous with “recognition and enforcement.”
Under the FAA, “any party to the arbitration may apply to any court having
jurisdiction under this chapter for an order confirming the award as against
any other party to the arbitration.” 9 U.S.C. § 207. “Confirmation” under §
207 is synonymous with “recognition and enforcement” under the New York
Convention. See CBF, 850 F.3d at 72 (“Read in context with the New York
Convention, it is evident that the term ‘confirm’ as used in [§] 207 is the equiv-
alent of ‘recognition and enforcement’ as used in the New York Convention
for the purposes of foreign arbitral awards.”); LLC SPC Stileks v. Republic of
Moldova, 985 F.3d 871, 875 (D.C. Cir. 2021) (explaining that, under § 207,
“[c]onfirmation is the process by which an arbitration award is converted to a
legal judgment”). To avoid confusion, I generally refer to the reduction of a
New York Convention award to a judgment as “recognition and enforce-
ment.” In Part II, I use the term “confirmation” when analyzing the text of
§ 207.
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20-13039 JORDAN, J., Concurring 11
A
Corporación AIC argues that § 10’s vacatur grounds are in-
corporated into the New York Convention through Article V(1)(e).
Hidroeléctrica Santa Rita answers that Article V(1)(e) does not in-
corporate domestic law—it is only a ground for refusing to recog-
nize and enforce a New York Convention award. See Oral Arg.
Audio at 19:01–50. I believe that Hidroeléctrica Santa Rita is cor-
rect on this point. Article V(1)(e) is not a ground for vacatur, nor
does it incorporate any bases for that remedy. Instead, it merely
recognizes the general principle of the New York Convention’s bi-
nary framework that vacatur of an award occurs at the primary ju-
risdiction under its domestic law. See Yusuf, 126 F.3d at 23 (ex-
plaining that Article V(1)(e) “contemplates that the state in which,
or under the law of which, the award is made, will be free to set
aside or modify an award in accordance with its domestic arbitral
law and its full panoply of express and implied grounds for relief”).
“The interpretation of a treaty, like the interpretation of a
statute, begins with its text.” GE Energy Power Conversion France
SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637,
1645 (2020) (internal quotation marks omitted). See also Vienna
Convention on the Law of Treaties, May 22, 1969, at Art. 31(1), 8
I.L.M. 4 (1969) (“A treaty shall be interpreted in good faith in ac-
cordance with the ordinary meaning to be given to the terms of the
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12 JORDAN, J., Concurring 20-13039
treaty.”). So I begin with the relevant language of the New York
Convention.5 Article V(1)(e) reads as follows:
Recognition and enforcement of the award may be
refused, at the request of the party against whom it is
invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is
sought, proof that . . . . [t]he award has not yet be-
come binding on the parties, or has been set aside or
suspended by a competent authority of the country in
which, or under the law of which, that award was
made.
(emphasis added). Given the difference between recognition and
enforcement on the one hand and vacatur on the other, interpret-
ing the text of Article V(1)(e) is not too difficult. Article V(1)(e)
allows a court exercising secondary jurisdiction to deny a request
to recognize and enforce a New York Convention award,
5 The United States has not ratified the Vienna Convention on the Law of
Treaties. Nevertheless, we (and some of our sister circuits) have relied on it
when interpreting treaties because it is considered the authoritative guide for
their interpretation. See Gandara v. Bennett, 528 F.3d 823, 827 (11th Cir. 2008)
(relying on the rules of interpretation in the Vienna Convention on the Law
of Treaties to interpret the Vienna Convention on Consular Relations). See
also Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1296
n.40 (11th Cir. 1999) (“Although the United States is not a party to the Vienna
Convention, it regards the substantive provisions of the Vienna Convention
as codifying the international law of treaties.”). Accord Mora v. New York,
524 F.3d 183, 196 (2d Cir. 2008); Restatement (Fourth) of Foreign Relations
Law § 306 cmt. a (ALI 2018).
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20-13039 JORDAN, J., Concurring 13
including, on the ground that it has been vacated by the competent
authority of the primary jurisdiction. It does not regulate the pro-
cedures or identify the grounds for vacatur at the primary jurisdic-
tion. Nor is there any indication that it incorporates the domestic
law of the primary jurisdiction into the New York Convention.
The context of Article V(1)(e) confirms that reading. See
Lozano v. Montoya Alvarez, 572 U.S. 1, 11 (2014) (“For treaties,
which are primarily compact[s] between independent nations, our
duty [i]s to ascertain the intent of the parties by looking to the doc-
ument’s text and context.”) (internal quotation marks and citation
omitted); Vienna Convention on the Law of Treaties at Art. 31(1)
(providing that the terms of a treaty are interpreted “in their con-
text and in the light of [the treaty’s] object and purpose”). As with
a statute, a treaty provision’s context includes its surrounding arti-
cles. See Vienna Convention on the Law of Treaties at Art. 31(2)
(“The context for the purposes of the interpretation of a treaty shall
[be comprised of, among other things,] its text, including its pre-
amble and annexes.”).
Article I establishes the limited scope of the New York Con-
vention in relation to arbitral awards. It states that the “Conven-
tion shall apply to the recognition and enforcement of arbitral
awards.” Article III introduces the provisions related to recogni-
tion and enforcement, mandating that signatory States “recognize
arbitral awards as binding and enforce them . . . under the condi-
tions laid down in the following articles.” Article IV lists the con-
ditions that must be fulfilled by a party “[t]o obtain the recognition
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14 JORDAN, J., Concurring 20-13039
and enforcement” of an award. Article V enumerates the only
grounds on which “[r]ecognition and enforcement of the award
may be refused.” And Article VI allows a court exercising second-
ary jurisdiction to “adjourn the decision on the enforcement of the
award” in the face of a pending vacatur application at the primary
jurisdiction. Conversely, no provision of the New York Conven-
tion identifies procedures, requirements, or grounds for vacatur. 6
The text and context of Article V(1)(e) eliminate any doubt
about its meaning. It provides a ground on which a court exercis-
ing secondary jurisdiction may refuse to recognize and enforce a
New York Convention award. Indeed, that is how we have read
Article V in other contexts. See Lindo v. NCL (Bahamas), Ltd., 652
F.3d 1257, 1263 (11th Cir. 2011) (“Article V of the Convention . . .
enumerates seven defenses that—like 9 U.S.C. § 207—are directed
at courts considering whether to recognize and enforce an arbitral
award. Article V applies at the award-enforcement stage.”); Suazo
v. NCL (Bahamas), Ltd., 822 F.3d 543, 546 (11th Cir. 2016) (“Article
V of the Convention, like 9 U.S.C. § 207, governs only the ‘award-
enforcement’ stage.”); Cvoro v. Carnival Corp., 941 F.3d 487, 495
(11th Cir. 2019) (“[A]fter arbitration is completed, a party may file
a motion to confirm the arbitral award, at which time the opposing
party may raise a particular set of defenses as to whether the district
6 All
the emphases in the quoted Articles of the New York Convention in this
paragraph are added.
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20-13039 JORDAN, J., Concurring 15
court should enforce the arbitral award.”). On that much, Hidroe-
léctrica Santa Rita is correct, and Corporación AIC is wrong.
B
On the other hand, I think Hidroeléctrica Santa Rita is mis-
taken in asserting that “the only difference between ‘primary’ and
‘secondary’” jurisdictions are the types of requests they can con-
sider. See Hidroeléctrica Santa Rita Br. at 17–18. The grounds on
which courts analyze those requests also differ.
As the Supreme Court has recognized, “the [New York]
Convention was drafted against the backdrop of domestic law.”
Outokumpu, 140 S. Ct. at 1645. Accordingly, “the Convention re-
quires courts to rely on domestic law to fill [its] gaps; it does not set
out a comprehensive regime that displaces domestic law.” Id. Nei-
ther Article V(1)(e) specifically nor the New York Convention gen-
erally provide any vacatur grounds, either directly or through in-
corporation. Consonant with the Convention’s binary framework,
the primary jurisdiction’s domestic law acts as a gap filler and de-
termines the vacatur grounds for a New York Convention award.
How other signatory States interpret the New York Conven-
tion matters. See id. at 1645–46 (“Because a treaty ratified by the
United States is an agreement among sovereign powers, we have
also considered as aids to its interpretation . . . the postratification
understanding of signatory nations.”) (internal quotation marks
omitted); Vienna Convention on the Law of Treaties at Art.
31(3)(b) (“There shall be taken into account, together with the
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16 JORDAN, J., Concurring 20-13039
context . . . any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its inter-
pretation.”). And other signatory States read the Convention in the
way I propose. As set out below, the lex arbitri of the United King-
dom (excluding Scotland) and Switzerland, for example, permit
challenges to international arbitral awards (including New York
Convention awards) issued in their respective territories on native
grounds.
In England, Wales, and Northern Ireland, an international
arbitral award can be challenged on two grounds—that it was
made without substantive jurisdiction or that the tribunal was af-
fected by a serious irregularity that has caused or will cause sub-
stantial injustice to the applicant—and it can be fully appealed on
questions of law. See Arbitration Act 1996, c. 23, §§ 2, 67–69 (Eng.).
In Switzerland, an international arbitral award can be vacated on
only five grounds, including that the tribunal wrongly accepted or
denied jurisdiction. See Bundesgesetz über das Internationale
Privatrecht [IPRG] (“Federal Act on Private International Law”),
Dec. 18, 1987, SR 291, at Art. 190(2). If Article V provided the
grounds for vacatur of New York Convention awards, signatory
States would not need to provide different grounds for vacatur and
appeal for such awards in their domestic law.
That is the way our sister circuits have interpreted the New
York Convention. See Yusuf, 126 F.3d at 22 (“There is no indica-
tion in the Convention of any intention to deprive the rendering
state of its supervisory authority over an arbitral award, including
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20-13039 JORDAN, J., Concurring 17
its authority to set aside that award under domestic law.”); Karaha
Bodas, 335 F.3d at 368 (“By its silence on the matter, the Conven-
tion does not restrict the grounds on which primary-jurisdiction
courts may annul an award, thereby leaving to a primary jurisdic-
tion’s local law the decision whether to set aside an award.”); Gold-
group Resources, Inc. v. DynaResource de Mexico, S.A. de C.V.,
994 F.3d 1181, 1190 (10th Cir. 2021) (“‘[T]he [New York] Conven-
tion mandates very different regimes for the review of arbitral
awards (1) in the state in which, or under the law of which, the
award was made, and (2) in other states where recognition and en-
forcement are sought.’”) (quoting Yusuf, 126 F.3d at 23). Their per-
spective is not dispositive, but it is significant.
The Restatement reads the New York Convention in the
same manner. See Restatement of International Arbitration, at §
4.14 cmt. a (“The Convention[ ] contemplate[s] that competent au-
thorities at the seat of arbitration may set aside an award made
there on grounds provided for by the arbitration law of that
place.”). See also id. at § 4.9 cmt. (a)(iv) (“[I]t is well established
that the New York [Convention] . . . do[es] not regulate the
grounds for vacating Convention awards under national arbitra-
tion law.”). And so do international arbitration scholars:
Significantly, [Article V(1)(e)] fails to specify the
grounds upon which the rendering State may set
aside or suspend the award. While it would have pro-
vided greater reliability to the enforcement of awards
under the Convention had the available grounds been
defined in some way, such action would have
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18 JORDAN, J., Concurring 20-13039
constituted meddling with national procedure for
handling domestic awards, a subject beyond the com-
petence of the Conference.
Leonard V. Quigley, Accession by the United States to the United
Nations Convention on the Recognition and Enforcement of For-
eign Arbitral Awards, 70 Yale L.J. 1049, 1069–70 (1961). Accord
Paulsson, Local Standard Annulments, 6 Asia Pac. L. Rev. at 23 (ex-
plaining that the text of the Convention “fails to define any—let
alone ‘carefully prescribed and limited’—grounds upon which the
courts of the country of origin may annul an award”); Blackaby,
International Arbitration, at 650 (“[T]he New York Convention
does not in any way restrict the grounds on which an award may
be set aside . . . by the court of [primary jurisdiction]. This is a
matter that is left to the domestic law of the country concerned.”);
van den Berg, The New York Arbitration Convention, at 95 (“[T]he
grounds on which the award has been set aside in the country of
origin can be any ground set out in the arbitration law of that coun-
try.”); Wolff, The New York Convention, at 367 (“The NYC sets
neither any standards nor any limits for the courts of the State
where the award was rendered for their decision-making process
as to setting aside or suspending the award. An application to set
aside the award in the country of origin is governed by the domes-
tic law of the seat State.”) (emphasis in original).
Hidroeléctrica Santa Rita says that applying domestic
grounds to the vacatur of international arbitral awards would run
counter to the New York Convention’s objective of standardizing
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20-13039 JORDAN, J., Concurring 19
the treatment of such awards. See Hidroeléctrica Santa Rita Br. at
14–17; Oral Arg. Audio at 16:30–17:05. That argument, however,
is flawed.
For starters, the argument starts from a faulty premise. It
presumes that the New York Convention seeks to standardize the
vacatur of international arbitral awards. But, as explained above,
the Convention does not provide (nor seek to provide) grounds for
vacatur. See, e.g., Wolff, The New York Convention, at 7 (“While
the Convention, in Article V, provides the grounds for refusal of
recognition and enforcement of an award by the enforcing court,
it does not harmonize the grounds for challenging an award.”) (em-
phasis in original and internal citations omitted). The Convention
does not aim to make uniform that which it does not address.
The solution to divergent domestic law, at least as to vaca-
tur, is to modify the domestic law. Take, for instance, the United
Nations Commission on International Trade Law Model Law on
International Commercial Arbitration (“UNCITRAL Model Law”),
a model law with a long name whose purpose is to assist countries
to reform and modernize their legal arbitral framework by taking
into account the particular features and needs of international com-
mercial arbitration. See generally UNCITRAL Model Law on In-
ternational Commercial Arbitration 1985 with Amendments
adopted in 2006 (2008), https://uncitral.un.org/sites/un-
citral.un.org/files/media-documents/uncitral/en/19-
09955_e_ebook.pdf. With respect to challenges against awards, it
seeks to ameliorate “[t]he disparity found in national laws as
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20 JORDAN, J., Concurring 20-13039
regards the types of recourse against an arbitral award available to
the parties[,] [which] presents a major difficulty in harmonizing in-
ternational arbitration legislation.” Id. at 34. It does so by making
vacatur the sole remedy against international arbitral awards and
by providing an exhaustive list of six vacatur grounds. See id. at
Arts. 34(1) & (2). The six grounds are identical to the seven New
York Convention Article V grounds except for Article V(1)(e).
Compare UNCITRAL Model Law at Art. 34(2) with New York
Convention at Art. V.
Countries that adopt Article 34(2) of the UNCITRAL Model
Law therefore fill in the New York Convention’s vacatur gap in a
way that (i) harmonizes and unifies their vacatur grounds with Ar-
ticle V’s grounds for refusal of recognition and enforcement and (ii)
aligns their vacatur grounds with those of other countries that im-
plement Article 34(2). That is the case of Spain, which has based
its current arbitral law on the UNCITRAL Model Law. See gener-
ally Spanish Arbitration Act (B.O.E. 60/2003). Article 41 of the
Spanish Arbitration Act enumerates six vacatur grounds (for do-
mestic and international awards) that largely mirror those of the
UNCITRAL Model Law. See Spanish Arbitration Act at Arts. 1, 41.
Article 46(2), on the other hand, establishes that the New York
Convention governs the enforcement of arbitral awards issued
abroad (unless another treaty provides more favorable enforce-
ment grounds). See id. at Art. 46(2).
Consequently, Hidroeléctrica Santa Rita’s conclusion—that
applying domestic vacatur grounds would run counter to the goal
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20-13039 JORDAN, J., Concurring 21
of predictability and frustrate the parties’ agreement—also fails. To
the contrary, parties expect that the lex arbitri will govern the arbi-
tral proceedings and provide the bases for vacatur. The selection
of the primary jurisdiction is therefore one of the most important
decisions of the arbitral process. See Paulsson, The Role of Swe-
dish Courts, 21 Va. J. Int’l L. at 215 (“The appropriateness of a coun-
try as the place of arbitration depends upon many factors . . . One
of the most important factors is the role of the country’s courts in
the arbitral process. Where a court retains the authority to scruti-
nize arbitrators on a wide variety of grounds, or to decide questions
of law, the efficacy of the arbitration procedures may be greatly
reduced.”); Lea H. Kuck & Amanda R. Kalantirsky, Vacating an In-
ternational Arbitration Award Rendered in the United States: Does
the New York Convention, the Federal Arbitration Act or State
Law Apply?, 3 Arb. L. Rev. 4, 7 (2011) (“The Convention contains
no description of or limitation on the capacity of the jurisdiction
where the award was rendered to apply its own law vacating the
award. This means that the parties’ choice of the seat of arbitration
can have significant consequences for any judicial review of the
award.”).
Precisely because they expect the application of domestic
law to vacatur requests and other challenges, parties sometimes
contract to exclude the application of less-favorable provisions (to
the extent they are permitted to do so). For example, in a recent
arbitration at the Permanent Court of Arbitration, the parties se-
lected London, United Kingdom, as the arbitral seat. See Carrizosa
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22 JORDAN, J., Concurring 20-13039
v. The Republic of Colombia, PCA Case No. 2018-56, Procedural
Order No. 1, ¶ 2.1 (Jan. 29, 2019). And they excluded the applica-
tion of § 69 of the English Arbitration Act, which allows parties to
an arbitration seated in England, Wales, or Northern Ireland to ap-
peal an award on questions of law. See id. at ¶ 2.2. Compare Eng-
lish Arbitration Act, at §§ 2 & 69.
In sum, Article V(1)(e) does not incorporate domestic vaca-
tur grounds into the New York Convention. Instead, the primary
jurisdiction’s domestic law directly supplies the grounds for vacat-
ing a New York Convention award.
III
Because the arbitration in this case was seated in Miami, we
must look to United States domestic law, the FAA, for the grounds
available for vacatur. Hidroeléctrica Santa Rita claims that § 207 of
the FAA “limits the grounds to oppose an award solely to those
‘specified in the [New York] Convention,’ [and thus] the enumer-
ated grounds in Article V of the Convention are ‘exclusive.’” Hi-
droeléctrica Santa Rita Br. at 16. That is true regarding an opposi-
tion to recognition and enforcement, but it is incorrect as to vaca-
tur. A proper reading of the FAA confirms that courts can vacate a
New York Convention award only on the grounds enumerated in
§ 10 of the FAA.
A
The FAA is divided into three chapters. Chapter 1, codified
at 9 U.S.C. §§ 1–16, governs domestic arbitrations. In the domestic
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20-13039 JORDAN, J., Concurring 23
context, § 9 regulates confirmation while § 10 governs vacatur. See
§§ 9, 10. Chapter 2, codified at §§ 201–208, implements the New
York Convention and governs arbitration agreements and awards
encompassed by it. In particular, § 207 governs the confirmation
(synonymous with recognition and enforcement) of Convention
awards. See CBF, 850 F.3d at 72. Finally, Chapter 3, codified at §§
301–307, is the analogue to Chapter 2 for arbitration agreements
and awards encompassed by the Inter-American Convention on In-
ternational Commercial Arbitration (“Panama Convention”). See
Inter-American Convention on International Commercial Arbitra-
tion, Jan. 30, 1975, S. Treaty Doc. No. 97-12, 1438 U.N.T.S. 24384.
For our purposes, the relevant parts of the FAA are Chapters 1 and
2. 7
The FAA, through § 207, allows a party to an arbitration to
apply “to any court having jurisdiction under this chapter for an
order confirming the award,” and instructs (emphasis added) that
“[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 [New York] Convention.” In Industrial Risk,
we misread § 207 as instructing courts on vacatur. See Industrial
Risk, 141 F.3d at 1445–46. A plain reading of § 207—and one based
on traditional canons of interpretation—indicates that it means
7 Under the FAA, then, two treaties govern the recognition and enforcement
of international arbitral awards: the Panama Convention and the New York
Convention.
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24 JORDAN, J., Concurring 20-13039
what it says: Courts can refuse or defer confirmation (not decide
on vacatur) of a New York Convention award in reliance on the
grounds enumerated in the Convention.
First, confirmation and vacatur under Chapter 1 “serve dif-
ferent purposes, request different relief, and are governed by differ-
ent provisions of the FAA.” McLaurin v. Terminix Int’l. Co., LP,
13 F.4th 1232, 1238 (11th Cir. 2021). The prevailing party in an ar-
bitration “seeks confirmation by a court generally because he fears
the losing party will not abide by the award; when he is [a]rmed
with a court order[,] the winning party has a variety of remedies
available to enforce the judgment.” Id. (internal quotation marks
omitted). Vacatur, on the other hand, is a challenge to the award,
often by the losing party. See id. The same is true in international
arbitration: “[W]hile recognition and enforcement are concerned
with giving effect to an arbitral award, the challenge of an award
involves attacking the award.” Wolff, The New York Convention,
at 7–8.
Given these differences, conflating confirmation and vacatur
when reading § 207 runs afoul of multiple canons of statutory in-
terpretation: (i) the whole-text canon—which provides that the
text of a statute must be construed as a whole; (ii) the canon of
consistent usage—which teaches that words or phrases are pre-
sumed to bear the same meaning throughout a text; and (iii) the
associated words canon—which establishes that associated words
bear on one another’s meaning. See 2A Norman J. Singer & J.D.
Shambie Singer, Statutes and Statutory Construction §§ 46:5, 47:16
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20-13039 JORDAN, J., Concurring 25
(7th ed. 2014); Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts 167–169, 170–73, 195–98 (2012).
Second, titles and headings can indicate a provision’s mean-
ing, and the title of § 207 also suggests that it addresses confirma-
tion and not vacatur. See 2A Singer & Singer, Statutory Construc-
tion, at §§ 47:3, 47:14; Scalia & Garner, Reading Law, at 221–24. As
noted earlier, Chapter 1 includes provisions regulating confirma-
tion, see 9 U.S.C. § 9 (“Award of arbitrators; confirmation; jurisdic-
tion; procedure”), and vacatur, see § 10 (“Same; vacation; grounds;
rehearing”). Like § 9, § 207 is titled “Award of arbitrators; confir-
mation; jurisdiction; proceeding.” Significantly, Chapter 2 does
not contain a provision titled like § 10. And “[w]here Congress in-
cludes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Con-
gress acts intentionally and purposely in the disparate inclusion or
exclusion.” Gozlon-Peretz v. United States, 498 U.S. 395, 404
(1991) (internal quotation marks omitted). That presumption, I
submit, is appropriate here.
Third, Chapter 2, which is in pari materia with the New
York Convention, should be read harmoniously with the latter.
See 2B Singer & Singer, Statutes and Statutory Construction, at
§51:2; Scalia & Garner, Reading Law, at 252. As noted, § 207 directs
courts to “confirm” a New York Convention award “unless it finds
one of the grounds for refusal or deferral of recognition or enforce-
ment of the award specified in the [New York] Convention.” Arti-
cle V enumerates the grounds on which a court exercising
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26 JORDAN, J., Concurring 20-13039
secondary jurisdiction can refuse to recognize and enforce a New
York Convention award. And Article VI allows a court exercising
secondary jurisdiction to defer a ruling on enforcement in favor of
a pending vacatur proceeding. Those provisions, as hopefully ex-
plained above, govern the power of a court to recognize and en-
force and award, not to vacate one. Thus, as one commentator has
noted, Industrial Risk “evidently does not track the logic of the
New York Convention.” Charles H. Brower II, Hollow Spaces, 61
Buff. L. Rev. 731, 821 (2013). Consequently, reading § 207 as ap-
plying to recognition and enforcement is harmonious with the
New York Convention, while reading § 207 as applying to vacatur
directly conflicts with the Convention.
Consonant with the New York Convention and its binary
framework, § 10 of the FAA provides the grounds for vacating a
New York Convention award. Chapter 2 of the FAA does not ex-
plicitly address vacatur, nor does it enumerate the grounds on
which a court can vacate a New York Convention award. Never-
theless, it does contain a residual clause which establishes that
“Chapter 1 applies to actions and proceedings brought under this
chapter to the extent that chapter is not in conflict with this chapter
or the [New York] Convention as ratified by the United States.” §
208. We have held that vacatur proceedings for non-domestic
awards (like the one here) are brought under Chapter 2 because
they relate to awards that are subject to the New York Convention.
See INPROTSA, 921 F.3d at 1289–1300. Because neither Chapter
2 nor the New York Convention provide grounds for vacatur, there
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20-13039 JORDAN, J., Concurring 27
is no conflict in applying § 10’s grounds to the vacatur of Conven-
tion awards.
The Second, Tenth, and Third Circuits have held that § 10
supplies the grounds for vacating New York Convention awards.
See Yusuf, 126 F.3d at 23; Goldgroup, 994 F.3d at 1189–90; Ario v.
Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of
Account, 618 F.3d 277, 292 (3d Cir. 2010). Though reaching the
correct result, both Goldgroup and Ario employ imprecise lan-
guage that muddles the distinction between confirmation and va-
catur. See Goldgroup, 994 F.3d at 1190 (“FAA defenses are availa-
ble in proceedings to confirm a nondomestic arbitration award ren-
dered in or under the law of the United States.”); Ario, 618 F.3d at
295 (“The award is confirmable under the FAA vacatur stand-
ards.”). That may be because both cases involved review of orders
on motions to vacate that were filed in confirmation proceedings.
See Ario, 618 F.3d at 287; Goldgroup Resources, Inc. v.
DynaResource De Mexico, S.A. De C.V., 381 F. Supp. 3d 1332,
1351–52 (D. Colo. 2019); Goldgroup, 994 F.3d at 1188. Notwith-
standing inexact terminology, Goldgroup and Ario held that § 10
provides the grounds for vacatur of New York Convention
awards. 8
8 Indicta, the Third Circuit in Ario summarily stated that “Article V(1)(e) of
the Convention incorporates the domestic FAA.” See Ario, 618 F.3d at 292. It
is unclear whether the Third Circuit used the term “incorporates” to mean
that § 10’s vacatur grounds are brought into the New York Convention, as
Corporación AIC proposes. To the extent that the dicta in Ario stands for that
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28 JORDAN, J., Concurring 20-13039
The Fifth Circuit has similarly recognized that, under the
New York Convention, a court exercising primary jurisdiction can
vacate an award in reliance on its domestic law. See Karaha Bodas,
335 F.3d at 368; Gulf Petro Trading Co., Inc. v. Nigerian Nat’l Pe-
troleum Corp., 512 F.3d 742, 746 (5th Cir. 2008). And it has already
held that § 10 supplies the default grounds for vacatur of awards
encompassed by the Panama Convention. See Vantage Deepwater
Co. v. Petrobras Am., Inc., 966 F.3d 361, 374–76, 375 n.2 (5th Cir.
2020).
The same FAA analysis applies to awards encompassed by
the Panama Convention and those encompassed by the New York
Convention. Like the New York Convention, the Panama Con-
vention does not supply vacatur grounds. See Ved P. Nanda, Da-
vid K. Pansius & Bryan Neihart, 3 Litigation of International Dis-
putes in U.S. Courts § 19:32 (Feb. 2022) (“FAA defenses—Evident
Partiality”). Chapter 3 of the FAA governs the recognition and en-
forcement of awards encompassed by the Panama Convention, as
§ 207 is incorporated into Chapter 3 of the FAA. See 9 U.S.C. § 302.
Finally, as with Chapter 2, Chapter 3 (i) does not have a provision
proposition, I respectfully disagree for the reasons provided above. But the
holding in Ario relies in large part on the Second Circuit’s reasoning in Yusuf,
including its analysis that Article V(1)(e) “contemplates” that the primary ju-
risdiction will apply its domestic law. See id. at 291–92. I agree with that latter
interpretation—i.e., that Article V(1)(e) recognizes that the primary jurisdic-
tion’s law, in this case the FAA, supplies the grounds for vacatur.
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20-13039 JORDAN, J., Concurring 29
regulating vacatur and (ii) has a substantially identical residual
clause. See § 307.
All things considered, courts can vacate New York Conven-
tion awards issued in the United States only on the grounds enu-
merated in § 10 of the FAA. Those grounds apply directly to peti-
tions or motions to vacate New York Convention awards.
B
On a final note, I would like to examine why courts have
had trouble properly interpreting Chapter 2 of the FAA and the
New York Convention. I do so with the hope of providing litigants
and courts with some guidance and clarity, the importance of
which will only increase in tandem with the rising number of inter-
national arbitrations seated in our circuit. See Dan Packel, Miami
Surges as International Arbitration Hub, but NYC Undaunted,
Daily Bus. Rev., Jun. 5, 2018, https://www.law.com/dailybusi-
nessreview/2018/06/05/miami-surges-as-international-arbitra-
tion-hub-but-nyc-undaunted/.
Over the years, courts have conflated confirmation and va-
catur when discussing New York Convention awards. I am not the
first one to pick up on the problem. See Jarred Pinkston, Toward
A Uniform Interpretation of the Federal Arbitration Act: The Role
of 9 U.S.C. § 208 in the Arbitral Statutory Scheme, 22 Emory Int’l.
L. Rev. 639, 670 (2008) (“[C]onfusion exists in the case law due to
many courts’ failure to clearly distinguish between a petition to
confirm and a motion to vacate an arbitral award.”); Susan L.
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30 JORDAN, J., Concurring 20-13039
Karamanian, The Road to the Tribunal and Beyond: International
Commercial Arbitration and United States Courts, 34 Geo. Wash.
Int’l. L. Rev. 17, 99 (2002) (“U.S. courts have failed to appreciate
the Convention’s basic distinction between a local action to vacate
an award and the separate confirmation process set forth under the
Convention.”).
A cursory Westlaw search reveals various opinions discuss-
ing vacatur when referring to confirmation/recognition and en-
forcement proceedings. See Goldgroup, 994 F.3d at 1188 (errone-
ously referring to a prior case on recognition and enforcement as
“recogniz[ing] that the defenses to enforcement specified in the
Convention provide the exclusive basis for vacating an arbitration
award rendered in or under the arbitral law of a foreign jurisdic-
tion”) (emphasis added); Jacada (Europe), Ltd. v. Int’l Mktg. Strat-
egies, Inc., 401 F.3d 701, 709 n.8 (6th Cir. 2005) (incorrectly describ-
ing a prior case on the recognition and enforcement of an award
made in England as ruling “that a party seeking to vacate an arbitral
award was limited to raising the exclusive grounds found in Article
V of the Convention”) (emphasis added), abrogated on other
grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576(2008); Mgmt. & Tech. Consultants S.A. v. Parsons-Jurden Int’l
Corp., 820 F.2d 1531, 1533–34 (9th Cir. 1987) (stating that “[u]nder
the Convention, an arbiter’s award can be vacated only on the
grounds specified in the Convention” though the court was review-
ing an order enforcing an award that had been issued in Bermuda)
(emphasis added). Despite the linguistic missteps, I think those
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20-13039 JORDAN, J., Concurring 31
courts ultimately reached the correct result. See Goldgroup, 994
F.3d at 1189–90 (holding that § 10 provides the grounds for vacatur
of a New York Convention award); Jacada, 401 F.3d at 709 (same);
Parsons, 820 F.2d 1534–35 (affirming a district court’s order enforc-
ing a New York Convention award under an Article V analysis).
But the imprecision has led to confusion and incorrect holdings,
like ours in Industrial Risk.
The muddling may be a consequence of two causes. First,
the FAA grounds for denying confirmation of a domestic award are
also the grounds for vacatur. See 9 U.S.C. § 9 (providing that a
court considering a motion to confirm “must grant” confirmation
“unless the award is vacated . . . as prescribed in [§ 10]”) (emphasis
added). In that way, an opposition to confirmation and a motion
to vacate are, in the domestic context, two sides of the same coin.
So—though we have recently clarified that the requests are dis-
tinct, see Terminix, 13 F.4th at 1238—conflating an opposition to
confirmation and a motion to vacate is unlikely to impact the sub-
stantive analysis. Second, § 207 uses the term “confirmation” to
refer to what the New York Convention calls “recognition and en-
forcement.” As a result, courts may have transferred the impreci-
sion from the domestic context into the international sphere, and
with it the preconception that identical grounds govern the analysis
of an opposition to recognition and enforcement and a motion to
vacate (or an independent petition to vacate).
But just as we must exchange currency when travelling in-
ternationally, we must change terminology when discussing
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32 JORDAN, J., Concurring 20-13039
international arbitration. Taking a fact about domestic arbitration
and transposing it into the international context ignores the text of
the New York Convention, its binary framework, and, in this case,
the text of § 207. This matters because the international implica-
tions of a successful opposition to recognition and enforcement
and a motion to vacate are different. A refusal to recognize and
enforce an award has only a domestic impact, see Karaha Bodas,
335 F.3d at 364, but a vacatur has international repercussions. Un-
der Article V(1)(e), a vacatur is a ground for refusing to recognize
and enforce an international arbitral award. Precisely for that rea-
son, the Second Circuit has cautioned district courts that, when de-
ciding whether to base their decision on § 10 of the FAA or Article
V of the Convention, they must clearly identify whether they are
ruling on a motion to vacate or an opposition to recognition and
enforcement. See Zeiler, 500 F.3d at 165 n.6.
Under the New York Convention and Chapter 2 of the FAA,
denial of recognition and enforcement and vacatur are not two
sides of the same coin—they are different legal tender. Parties
should make clear whether they are opposing recognition and en-
forcement or seeking vacatur, and district courts must recognize
the nature of the request on which they are ruling.
IV
I concur in the affirmance of the district court’s order of dis-
missal because Industrial Risk and INPROSTA bind us. But Indus-
trial Risk and INPROTSA misinterpreted the New York Conven-
tion, did not appreciate its binary framework, failed to grasp the
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20-13039 JORDAN, J., Concurring 33
distinction between recognition and enforcement and vacatur, and
consequently misread § 207 of the FAA. Like the court, I believe
that we should convene en banc to reconsider Industrial Risk and
INPROTSA, and this case provides a good vehicle in which to do
so.