Johnson Controls, Incorporated v. Edman Controls, Incorporated , 712 F.3d 1021 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-2308 & 12-2623
JOHNSON C ONTROLS, INC.,
Plaintiff-Appellant,
v.
E DMAN C ONTROLS, INC.,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 11-cv-00928—Lynn Adelman, Judge.
A RGUED O CTOBER 24, 2012—D ECIDED M ARCH 18, 2013
Before P OSNER, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. Although arbitration is sup-
posed to be a procedure through which a dispute can be
resolved privately, with the narrowest of exceptions for
court intervention, losers sometimes cannot resist the
urge to try for a second bite at the apple. That is what
has happened here. Johnson Controls, Inc. (Johnson)
and Edman Controls, Inc. (Edman) entered into an agree-
ment giving Edman the exclusive rights to distribute
2 Nos. 12-2308 & 12-2623
Johnson’s products in Panama. When it appeared
that Johnson was not living up to its promise, Edman
invoked the agreement’s arbitration clause. The arbi-
trator ultimately concluded that Johnson had breached
the agreement and that Edman was entitled to dam-
ages. Rather than accept that result, Johnson filed
this suit, in which it seeks to vacate or modify the
arbitral award. Edman responded with a motion to
confirm. The district court ruled in Edman’s favor, and
Johnson now appeals.
I
Johnson is a Wisconsin company that manufactures
building management systems and HVAC equipment.
It distributes its products through direct sales, mechan-
ical contractors, and distributors. Edman, a distribution
company, was created by a former employee of Johnson;
it is incorporated in the British Virgin Islands. Edman
hoped to exploit its familiarity with the Panamanian
building market in order to market Johnson’s products
to developers there.
In March 2007, Johnson and Edman entered into an
agreement that awarded Edman the exclusive rights to
distribute Johnson products in Panama. The agreement
committed Johnson to assist Edman with semi-annual
reviews of a market focus plan and to give Edman mar-
keting and sales information, including specific cus-
tomer leads. The agreement also provided that any dis-
pute arising from the parties’ arrangement would be
resolved through arbitration using Wisconsin law and
Nos. 12-2308 & 12-2623 3
that the losing party would be responsible for the pre-
vailing party’s attorneys’ fees. After the agreement was
concluded, Johnson distributed promotional materials
recognizing Edman as the “only authorized fire safety,
CCTV, and access control agent for [Johnson] in Panama.”
At the time the parties signed the agreement, Johnson
was aware that Edman planned to distribute Johnson’s
products by contracting with its two Panamanian sub-
sidiary corporations, Pinnacle Technologies and Pinnacle
Engineering—we refer to them as “Pinnacle” for sim-
plicity. (They were merged into Edman on July 28,
2011, but this is of no importance to the dispute
here.) Edman’s plan was to delegate to Pinnacle the
direct responsibility to deliver Johnson’s products to
Panamanian customers. Edman itself would operate as
an intermediary between Johnson and Pinnacle.
In 2009, Johnson breached the agreement by at-
tempting to sell its products directly to Panamanian
developers, circumventing Edman. There was nothing
subtle about this: Johnson supervisors instructed man-
agers of Johnson’s operations in Latin America to “keep
Edman away from Johnson.” The head of Johnson’s
Latin American operations in Panama confirmed that
he understood he was not to deal with Edman’s presi-
dent. As of mid-2009, Edman said, it had lost all sup-
port and backing from Johnson. Edman representatives
repeatedly emailed Johnson about the issue, but they
never received a response. In 2010, Edman learned
that Johnson was offering to sell its products directly to
Edman’s primary client in Panama—a building developer
4 Nos. 12-2308 & 12-2623
that had purchased Johnson products from Edman for
numerous projects on the understanding that Edman
was the exclusive Johnson distributor in Panama. This
client lost trust in Edman because it felt that Edman
had misrepresented its exclusive right to distribute John-
son products. Once Johnson began to present itself
as Edman’s competitor, customers started questioning
whether Edman could still support the Johnson prod-
ucts it sold.
In August 2010, Edman initiated arbitration pro-
ceedings against Johnson, raising four claims: (1) tortious
interference with Edman’s contractual relations with
its customers; (2) unjust enrichment; (3) breach of duties
of good faith and fair dealing arising out of the
contract; and (4) tortious interference with Pinnacle’s
contractual relations. The arbitrator dismissed Edman’s
fourth claim on the ground that he was not authorized
to address matters concerning “relationships enjoyed by
either of Edman’s subsidiary corporations.” Neverthe-
less, he concluded that Edman had suffered its own
damages, independent of whatever damage Pinnacle
suffered. While Johnson has attacked this conclusion
vigorously in this court, it does not strike us as contradic-
tory or baseless. Edman entered into the agreement
for the purpose of profiting from distributing Johnson
products. It chose to accomplish this task by using
its Panamanian subsidiaries as its agents, rather than
using in-house employees or third-party agents. This
was not a charitable operation; Edman naturally
expected to profit from its overall efforts. Moreover, as
the arbitrator pointed out, Johnson was aware of this
Nos. 12-2308 & 12-2623 5
operating structure at the time of the agreement
and expressed no objection to it.
The arbitrator found that Johnson breached the obliga-
tion of good faith and fair dealing that Wisconsin law
imposes, as well as the express obligation of good faith
and due diligence set forth in the agreement. He also
concluded that Johnson was unjustly enriched by the
capital investments Edman made to establish Johnson’s
presence in Panama. As damages, the arbitrator awarded
Edman $457,986.39 for lost profits and $244,530.25 for
reliance expenditures. In addition, he awarded Edman
$30,825 in administrative fees and expenses. The total
amount of the award exclusive of attorney’s fees was
thus $733,341.64.
Johnson did not accept this result. It filed a motion
in district court to vacate the arbitral award pursuant
to Chapter 1 of the Federal Arbitration Act, 9 U.S.C.
§ 10(a)(4) (FAA), which provides that a district court
may vacate an arbitral award if “the arbitrators ex-
ceeded their powers.” This had occurred, in Johnson’s
view, because the arbitrator (contrary to his representa-
tion) had addressed claims that Edman brought on
behalf of Pinnacle, and in so doing, the arbitrator had
disregarded a Wisconsin rule under which Edman
lacked standing to assert Pinnacle’s claims. This alleged
mistake of law, Johnson argued, could have happened
only if the arbitrator flatly disregarded the agree-
ment’s choice-of-law clause.
The district court denied Johnson’s motion to vacate
the arbitral award and instead granted Edman’s motion
6 Nos. 12-2308 & 12-2623
to confirm it. Noting the narrow scope of judicial review
of an arbitral award and the fact that neither factual
nor legal error is a sufficient ground for vacatur, the
court first rejected the argument that the arbitrator ex-
ceeded his authority by adjudicating Pinnacle’s claims.
In fact, the court pointed out, the arbitrator expressly
dismissed Edman’s effort to recover for Johnson’s in-
terference with Pinnacle’s contractual relations. By so
doing, the arbitrator effectively took account of Johnson’s
assertion that Edman did not have standing to assert
claims on behalf of Pinnacle. The district court also
pointed out that the arbitrator cited Wisconsin law
throughout his decision and thus there was no sign
that the arbitrator had disregarded the parties’ con-
tractual choice of law.
Because the agreement contained a “loser pays” provi-
sion for attorney’s fees, the district court also addressed
this subject. Edman’s agreement with its lawyer pro-
vided for a contingent fee in the amount of 33% of the
award. Edman sought $252,127.93 (one-third the sum of
the $733,341.64 arbitrator’s award and $23,042.16 in
prejudgment interest owed to Edman), plus another
$57,480.05 in other costs. Relying on two affidavits
from experts that Edman submitted and Johnson’s
silence on the point, the court decided that the con-
tingent fee was commercially reasonable. It decided to
lop $17,521.25 off of Edman’s requested costs and to
award $39,958.80. Johnson’s two notices of appeal chal-
lenge the district court’s decision on the merits to confirm
the arbitral award and its award of fees and costs.
Nos. 12-2308 & 12-2623 7
II
Before addressing the merits of Johnson’s claims, we
think it worth highlighting a point about arbitral proce-
dure. Both parties in this case based their arguments on
Chapter 1 of the FAA, rather than Chapters 2 or 3 of
that statute. Chapter 1 codifies the original Federal Ar-
bitration Act of 1925, 43 Stat. 883; it applies to all
domestic awards and to all other awards not otherwise
covered by another legal instrument. But the FAA does
not stop with Chapter 1. Chapter 2 implements the Con-
vention on the Recognition and Enforcement of Foreign
Arbitral Awards of June 10, 1958, commonly called the
New York Convention. See 9 U.S.C. § 201. Chapter 3
implements the Inter-American Convention on Interna-
tional Commercial Arbitration of January 30, 1975,
known as the Panama Convention. The United States
is a party to both of those Conventions.
Chapter 2 of the New York Convention and Chapter 3
of the Panama Convention provide for domestic enforce-
ment of foreign arbitral awards. Any commercial agree-
ment or arbitration that “involves property located
abroad, envisages performance or enforcement abroad,
or has some other reasonable relation with one or more
foreign states” is governed by the New York or Panama
Convention, when both or all countries concerned are
parties to the relevant Convention. 9 U.S.C. § 202; see
also Jain v. de Méré, 51 F.3d 686, 689 (7th Cir. 1995)
(“[A]ny commercial arbitral agreement, unless it is be-
tween two United States citizens, involves property
located in the United States, and has no reasonable rela-
8 Nos. 12-2308 & 12-2623
tionship with one or more foreign states, falls under
the Convention.”). Very few foreign awards fall outside
the reach of one or the other Convention. The New
York Convention now has 148 state-parties, see http://
ww w.newyorkconvention.org/new -york-convention-
countries/contracting-states (last visited Mar. 13, 2013), and
the Panama Convention has 19, see http://www.oas.org/
juridico/english/sigs/b-35.html (last visited Mar. 13,
2013). This award almost certainly falls under either
the New York or the Panama Convention, depending on
whether Edman is considered a British company (the
British Virgin Islands are a British Overseas Territory) or
a Panamanian company. If it is the former, then the
New York Convention applies; if the latter, then pursu-
ant to 9 U.S.C. § 305, the Panama Convention governs.
Chapters 2 and 3 of the FAA state that a Convention
award may be vacated only on the grounds specified in
the applicable Convention. 9 U.S.C. §§ 202, 302. This
could be important in some cases, because the Conven-
tion grounds for vacatur are slightly different from
those in Chapter 1 of the FAA. Compare 9 U.S.C. § 10(a),
with New York Convention Art. V, and Panama Conven-
tion Art. 5; see also George A. Bermann, “Domesticating”
the New York Convention: The Impact of the Federal Arbitra-
tion Act, 2 J. INT'L D ISP. S ETTLEMENT, no. 2, 317-32
(2011), available at http://jids.oxfordjournals.org/content/
2/2/317.full#xref-fn-7-1 (last visited Mar. 13, 2013). (The
full text of each of these provisions is set out in
the Appendix to this opinion.) It is not clear whether
a party may bring an action under Chapter 1 to vacate
Nos. 12-2308 & 12-2623 9
an award issued by an arbitrator in a U.S. jurisdiction,
but governed by the Convention. Id. If it made any dif-
ference to our case, we would need to decide whether
the district court erred by allowing this action to
proceed under Chapter 1 of the FAA, or if the party
who might have been advantaged by analysis under
the proper Convention might have waived its argu-
ments. But, as we explain below, we do not regard this
as a close case, and so we can save further consideration
of that issue for another day.
III
We already have alluded to the reasons why Johnson
believes that this arbitral award should be vacated: the
way in which the award took account of Pinnacle’s
injuries; the arbitrator’s alleged refusal to follow Wis-
consin law; and the approach the district court took to
the fee award. Johnson acknowledges, and Edman em-
phasizes, that it is difficult to overturn an arbitral
award. We uphold an award so long as “an arbitrator is
even arguably construing or applying the contract and
acting within the scope of this authority.” Local 15, Int’l
Bhd. of Elec. Workers v. Exelon Corp., 495 F.3d 779, 782-
83 (7th Cir. 2007) (emphasis added) (internal quotation
marks omitted). We will not overturn an award because
an arbitrator “committed serious error,” or the decision
is “ ‘incorrect or even whacky.’ ” Id. (quoting Wise v.
Wachovia Sec., LLC, 450 F.3d 265, 269 (7th Cir. 2006)); see
also Flexible Mfg. Sys. Pty. Ltd. v. Super Prods. Corp., 86 F.3d
96, 100 (7th Cir. 1996) (“[T]hinly veiled attempts to
10 Nos. 12-2308 & 12-2623
obtain appellate review of an arbitrator’s decision . . . are
not permitted under the FAA . . . . Factual or legal errors
by arbitrators—even clear or gross errors—do not autho-
rize courts to annul awards.”) (internal quotation marks
omitted).
In the context of labor awards, we have said that the
only time when we will disrupt an award is if we
find the arbitrator “effectively dispenses his own
brand of industrial justice” because “there is no possible
interpretive route to the award.” Local 15, Int'l Bhd. of
Elec. Workers, 495 F.3d at 783 (quoting Major League
Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001));
Ganton Techs., Inc. v. UAW, Local 627, 358 F.3d 459,
462 (7th Cir. 2004)). The same approach applies to com-
mercial arbitration. Indeed, in two commercial cases
we have held that even “manifest disregard of the law
is not a ground on which a court may reject an arbitrator’s
award” unless it orders parties to do something that
they could not otherwise do legally (e.g., form a cartel to
fix prices). Affymax, Inc. v. Ortho-McNeil-Janssen Pharm.,
Inc., 660 F.3d 281, 285 (7th Cir. 2011); George Watts
& Son, Inc. v. Tiffany & Co., 248 F.3d 577, 580 (7th Cir. 2001).
This is not a case in which one can find any of the
circumstances singled out in Section 10 of the FAA (or,
for that matter, Article V of the New York Convention
or Article 5 of the Panama Convention) as something
that justifies a refusal to recognize or enforce an arbitral
award. Johnson argues that the arbitrator exceeded
his powers when he found, allegedly contrary to
Wisconsin law, that Edman had standing to bring claims
Nos. 12-2308 & 12-2623 11
on behalf of Pinnacle. This argument alludes to Section
10(a)(4) of the FAA, which permits vacatur of an award
“where the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was
not made.” But nothing so dramatic happened here.
At worst, the arbitrator overlooked or misapplied one
Wisconsin decision holding that plaintiffs’ interest in
corporations that were sisters to a mismanaged
corporation did not support their standing to sue the
parties responsible for mismanaging the victimized
corporation. Krier v. Vilione, 766 N.W.2d 517, 520 (Wis.
2009). A proper reading of this case, Johnson argues,
would have required the arbitrator to reject Edman’s
standing to assert any claims for Pinnacle’s damages.
There are two incurable shortcomings to Johnson’s
argument. First, it is factually wrong. It assumes that the
arbitrator granted Edman standing to assert the claims
of Pinnacle, when in fact the arbitrator refused to do
precisely that. Second, because the arbitrator permitted
Edman to assert claims only for its own damages, and
not Pinnacle’s, the arbitrator’s decision can be under-
stood as consistent with Krier. The Krier court noted
that “standing is satisfied when a party has a personal
stake in the outcome,” id. at 304, and Edman certainly
had a personal stake in the enforcement of its contract
with Johnson.
Since the arbitrator denied Edman standing to assert
Pinnacle’s claims, Johnson can contest only the finding
that Edman itself was injured by the breach. Johnson
12 Nos. 12-2308 & 12-2623
contends that the breach did not hurt Edman because all
of the lost profits and investment were actually suffered
by Pinnacle. But the losses did not stop with Pinnacle.
The direct purchaser from Johnson was Edman;
Pinnacle was performing downstream services for
Edman. Paragraph 8.a of the agreement makes this
clear when it provides that “[t]he relationship between
[Johnson] and [Edman] is solely that of seller and
buyer.” The extent to which Edman stood to profit as
an intermediary depended on how effectively it could
distribute Johnson’s products, through whatever dis-
tribution agents it saw fit to use. Pinnacle’s profits pro-
vided a critical indicator of the value of the arrange-
ment to Edman. The arbitrator properly looked at this
evidence, along with other facts, and came to a conclu-
sion. This was precisely what he was authorized to do,
and even if some might question his conclusions, that
is no reason to set aside the award.
IV
Finally, we come to the question of attorney’s fees. We
review the district court’s decisions on this aspect of the
case only for abuse of discretion. Spegon v. Catholic Bishop
of Chi., 175 F.3d 544, 550 (7th Cir. 1999). Johnson’s primary
objection relates to the court’s decision not to use the
lodestar method for setting the fee award. Because we
have held that this is the preferable methodology to use
for awards under 42 U.S.C. § 1988 (the civil rights
statute providing for attorney’s fees for the prevailing
party), see Pickett v. Sheridan Health Care Ctr., 664 F.3d
Nos. 12-2308 & 12-2623 13
632, 639 (7th Cir. 2011), Johnson reasons that it must
be used here as well.
This argument neglects the distinction between attor-
ney’s fees shifted by statute and those shifted by con-
tract. It is true that we have required lodestar analysis
for statutory fee-shifting schemes. Id. at 639 (“In Title VII
actions, . . . [t]he lodestar approach forms the ‘centerpiece’
of attorneys’ fee determinations, and it applies even
in cases where the attorney represents the prevailing
party pursuant to a contingent fee agreement.”)
(emphasis added). Fees shifted by contract are a dif-
ferent matter. Because fee-shifting occurs as a result of
the parties’ ex ante private ordering, we have held that
fees shifted pursuant to a contractual provision
“require reimbursement for commercially-reasonable
fees no matter how the bills are stated.” Matthews v.
Wisconsin Energy Corp., Inc., 642 F.3d 565, 572 (7th Cir.
2011) (citations omitted). The inquiry into commercial
reasonableness “does not require courts to engage in
detailed, hour-by-hour review of a prevailing party’s
billing records.” Id. (upholding a contractual fee-shifting
award even though the “request lacked any description
of the work performed”).
There is less need to police the reasonableness of fees
shifted pursuant to a contract because the parties to a
contract expressly consent to and define the terms of
the fee shifting. If the parties do not want to pay an
opposing party’s contingent fee, they are free to write
an agreement under which the prevailing party will be
obliged only to pay fees calculated in accordance with
14 Nos. 12-2308 & 12-2623
the lodestar method. On the other hand, contracting
parties may want to preserve their ability to rely on a
contingent fee arrangement to litigate a breach of the
contract and have those fees reimbursed if they prevail.
We see no reason to curtail parties’ ability to define the
terms of their fee arrangements with lawyers. This is
quite different from a statutory obligation to pay the
opponent’s fees, where the party responsible for the
fees does not consent to the arrangement and has no
say in determining how fees will be calculated.
In Matthews we explained that the commercial reason-
ableness of an award pursuant to a contractual fee
shift should be determined with reference to “the aggre-
gate costs in light of the stakes of the case and opposing
party’s litigation strategy.” Id. at 572. The district court’s
analysis supports its determination that the 33.3% con-
tingent fee here was commercially reasonable. Edman
submitted affidavits from two experts stating that a
1/3 contingent fee is common for commercial arbitra-
tion cases in Florida, where the arbitration took place.
And the court noted that “commercially reasonable”
contingent fees may be higher than a commercially rea-
sonable lodestar rate because a contingent arrangement
may include a premium that captures the attorney’s up-
front investment as well as the risk of losing the case.
Johnson declined to disclose the fees it incurred (a sum
that it presumably believed was reasonable) for the
purpose of comparing Edman’s contingent fees to its
own expenses. Nor did Johnson provide any evidence
showing Edman’s 33% contingent fee is higher than
the fee typically charged for comparable work in the
Nos. 12-2308 & 12-2623 15
relevant area and therefore unreasonable. Id. The court
did not an abuse its discretion in concluding that Edman
was entitled to a 33.3% contingent fee.
V
In closing, we comment on Edman’s request for
sanctions under Federal Rule of Appellate Procedure 38
against Johnson. Rule 38 authorizes sanctions for
appeals that the court determines are frivolous. An
appeal is frivolous “if the appellant merely restates ar-
guments properly rejected by the district court that are
unsupported by a reasoned colorable argument for
altering the district court’s judgment.” Smeigh v. Johns
Manville, Inc., 643 F.3d 554, 565 (7th Cir. 2011). Although
we have decided to deny Edman’s motion, this is
largely because the fee-shifting clause in the contract
already assures that Edman will not bear the costs of
this appeal. We note, however, that challenges to com-
mercial arbitral awards bear a high risk of sanctions.
See Flexible Mfg., 86 F.3d at 101 (imposing sanctions).
Attempts to obtain judicial review of an arbitrator’s
decision undermine the integrity of the arbitral process.
Because of Johnson’s appeal, Edman has been deprived
not only of the value of the distributorship it expected
to have for Panama, but also part of the value of the
arbitration to which both parties agreed. The judgment
of the district court is A FFIRMED.
16 Nos. 12-2308 & 12-2623
APPENDIX
Federal Arbitration Act, 9 U.S.C. § 10(a):
(a) In any of the following cases the United States court
in and for the district wherein the award was made
may make an order vacating the award upon the applica-
tion of any party to the arbitration—
(1) where the award was procured by corruption, fraud,
or undue means;
(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 postpone 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 executed them that a mutual, final, and
definite award upon the subject matter submitted was
not made.
New York Convention, Art. V (http://www.uncitral.org/
uncitral/en/uncitral_texts/arbitration/NYConvention.html)
(last visited Mar. 13, 2013):
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 competent
authority where the recognition and enforcement is
sought, proof that:
Nos. 12-2308 & 12-2623 17
(a) The parties to the agreement referred to in article II
were, under the law applicable to them, under some
incapacity, or the said agreement is not valid under 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 invoked was
not given proper notice of the appointment of the arbitra-
tor or of the arbitration proceedings or was otherwise
unable to present his case; or
(c) The award deals with a difference not contemplated
by or not falling within the terms of the submission to
arbitration, or it contains decisions on matters beyond
the scope of the submission to arbitration, provided
that, if the decisions on matters submitted to arbitration
can be separated from those not so submitted, that part
of the award, which contains decisions on matters sub-
mitted to arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the
arbitral procedure was not in accordance with the agree-
ment of the parties, or, failing such agreement, was not
in accordance with the law of the country where the
arbitration 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
18 Nos. 12-2308 & 12-2623
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.
Panama Convention, Art. 5 (http://www.oas.org/
juridico/english/treaties/b-35.html) (last visited Mar. 13,
2013):
1. The recognition and execution of the decision may
be refused, at the request of the party against which it
is made, only if such party is able to prove to the com-
petent authority of the State in which recognition
and execution are requested:
a. That the parties to the agreement were subject to
some incapacity under the applicable law or that the
agreement is not valid under the law to which the
parties have submitted it, or, if such law is not
specified, under the law of the State in which the
decision was made; or
b. That the party against which the arbitral decision
has been made was not duly notified of the appointment
of the arbitrator or of the arbitration procedure to be
followed, or was unable, for any other reason, to
present his defense, or
c. That the decision concerns a dispute not envisaged
in the agreement between the parties to submit to ar-
Nos. 12-2308 & 12-2623 19
bitration; nevertheless, if the provisions of the decision
that refer to issues submitted to arbitration can be sepa-
rated from those not submitted to arbitration, the
former may be recognized and executed; or
d. That the constitution of the arbitral tribunal or the
arbitration procedure has not been carried out in accor-
dance with the terms of the agreement signed by the
parties or, in the absence of such agreement, that the
constitution of the arbitral tribunal or the arbitration
procedure has not been carried out in accordance with
the law of the State where the arbitration took place; or
e. That the decision is not yet binding on the parties
or has been annulled or suspended by a competent author-
ity of the State in which, or according to the law of
which, the decision has been made.
2. The recognition and execution of an arbitral decision
may also be refused if the competent authority of the
State in which the recognition and execution is re-
quested finds:
a. That the subject of the dispute cannot be settled
by arbitration under the law of that State; or
b. That the recognition or execution of the decision
would be contrary to the public policy (“ordre public”)
of that State.
3-18-13