Thai-Lao Lignite (Thailand) Co. v. Government of the Lao People's Democratic Republic , 492 F. App'x 150 ( 2012 )

11-3536-cv
Thai-Lao Lignite v. Government of the Lao People’s Democratic Republic
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 13th day of July, two thousand twelve,
Present: JON O. NEWMAN,
RALPH K. WINTER,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________________________
THAI-LAO LIGNITE (THAILAND) CO. LTD.,
HONGSA LIGNITE (LAO PDR) CO. LTD.,
Petitioners-Appellees,
-v- 11-3536-cv
GOVERNMENT OF THE LAO PEOPLE’S DEMOCRATIC REPUBLIC,
Respondent-Appellant.
_____________________________________________________
Appearing for Appellant: David J. Branson, Washington, D.C. (Anthony J. Hatab, Dressel &
Hatab, P.C., New York, N.Y. , on the brief).
Appearing for Appellee: James E. Berger, King & Spalding, New York, N.Y. (Charlene C.
Sun, on the brief).
Appeal from a judgment of the United States District Court for the Southern District of
New York (Wood, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
The Government of The Lao People’s Democratic Republic (“Laos”) appeals from the
August 3, 2011 grant of the motion by Thai–Lao Lignite (Thailand) Co. Ltd. ("TLL") and
Hongsa Lignite (LAO PDR) Co. Ltd., ("HLL") confirming an arbitral award issued in Kuala
Lumpur, Malaysia, pursuant to the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, as
implemented by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 201 et seq. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.
We review a district court decision confirming an arbitration award under an abuse of
discretion standard, “accepting findings of fact that are not ‘clearly erroneous’ but deciding
questions of law de novo.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-48
(1995). The party resisting enforcement bears the burden of proving one or more of the grounds
for refusing to confirm an award applies. Encyclopaedia Universalis S.A. v. Encyclopaedia
Britannica, Inc., 403 F.3d 85, 90 (2d Cir. 2005). “The burden is a heavy one, as ‘the showing
required to avoid summary confirmance is high.’” Id. (citation omitted).
At issue here is whether the arbitral panel exceeded its jurisdiction under the Project
Development Agreement (the “PDA”). There is no question that Laos is a signatory to the PDA.
The PDA specifically provides that any arbitration will be governed by UNCITRAL rules, which
provide that “[t]he arbitral tribunal shall have the power to rule on objections that it has no
jurisdiction, including any objections with respect to the existence or validity of the arbitration
clause or of the separate arbitration agreement.” UNCITRAL Arbitration Rules, art. 21. There is
no question, then, that the arbitral panel was free to decide the scope of its own jurisdiction –
including whether other parties had standing as third-party beneficiaries. See Republic of
Ecuador v. Chevron Corp., 638 F.3d 384, 394–95 (2d Cir. 2011) (having agreed through
incorporation by reference to the UNCITRAL rule delegating questions of arbitrability to the
arbitral panel, “Ecuador cannot now disown its agreed-to obligation to arbitrate ... the question[s]
of arbitrability it has raised as defenses to arbitration in this Court.”) (internal quotation marks
omitted); Contec Corp. v. Remote Solution Co., 398 F.3d 205, 209 (2d Cir. 2005)(When the
arbitration agreement between the parties grants the arbitrator the power to “decide issues of
arbitrability, the incorporation serves as clear and unmistakable evidence of the parties’ intent to
delegate such issues to an arbitrator.”). In addition, HLL’s presence in the arbitration was not
shown to disadvantage the respondent in any way.
Moreover, we find the district court did not abuse its discretion in applying a deferential
standard of review in its analysis of the arbitral panel’s decision. See Parsons & Whittemore
Overseas Co. v. Societe Generate de L'Industrie du Papier (RAKTA), 508 F.2d 969 (1974). In
Parsons, Parsons objected to certain damages in an arbitral award entered against it, including
$185,000 for “loss of production” when the agreement specifically provided that “neither party
shall have any liability for loss of production.” Id. at 976. We deferred to the arbitral panel,
finding the decision “premised ... on [] construction of the contract.” Id. We concluded that,
“[a]lthough the Convention recognizes that an award may not be enforced where predicated on a
subject matter outside the arbitrator's jurisdiction, it does not sanction second-guessing the
arbitrator's construction of the parties' agreement.” Id. at 977. Similarly, here Laos seeks to
undo the arbitral panel’s contract interpretation of the PDA, which lies beyond the scope of our
review.
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We have examined the remainder of appellant’s arguments and find them without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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