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Summary: Case: 18-12615 Date Filed: 06/25/2020 Page: 1 of 25 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-12615 _ D.C. Docket No. 1:15-cv-20098-RNS EGI-VSR, LLC, Petitioner – Appellee, versus JUAN CARLOS CELESTINO CODERCH MITJANS, Respondent – Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (June 25, 2020) Before ROSENBAUM and TJOFLAT, Circuit Judges, and PAULEY,* District Judge. *Honorable William H. Pauley, III, Senio
Summary: Case: 18-12615 Date Filed: 06/25/2020 Page: 1 of 25 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-12615 _ D.C. Docket No. 1:15-cv-20098-RNS EGI-VSR, LLC, Petitioner – Appellee, versus JUAN CARLOS CELESTINO CODERCH MITJANS, Respondent – Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (June 25, 2020) Before ROSENBAUM and TJOFLAT, Circuit Judges, and PAULEY,* District Judge. *Honorable William H. Pauley, III, Senior..
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Case: 18-12615 Date Filed: 06/25/2020 Page: 1 of 25
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________
No. 18-12615
_________________
D.C. Docket No. 1:15-cv-20098-RNS
EGI-VSR, LLC,
Petitioner – Appellee,
versus
JUAN CARLOS CELESTINO CODERCH MITJANS,
Respondent – Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 25, 2020)
Before ROSENBAUM and TJOFLAT, Circuit Judges, and PAULEY,∗ District
Judge.
∗Honorable William H. Pauley, III, Senior United States District Judge, Southern District
of New York, sitting by designation.
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TJOFLAT, Circuit Judge:
Juan Carlos Celestino Coderch Mitjans (“Mr. Coderch”) appeals the District
Court’s order confirming a $28 million international arbitration award in favor of
EGI-VSR, LLC (“EGI”). In 2012, a Chilean arbitrator resolved a dispute between
EGI and Mr. Coderch arising out of a Shareholders’ Agreement that was designed
to protect EGI’s investment in a Chilean wine company. Specifically, the
arbitrator enforced a provision of the Shareholders’ Agreement which gave EGI
the right to sell its shares back to the controlling shareholders, including Mr.
Coderch, at a premium if any of the controlling shareholders breached certain
promises made to EGI in the Agreement. The arbitrator found that the controlling
shareholders breached the Agreement and ordered Mr. Coderch and the other
controlling shareholders to pay for all of EGI’s shares at the premium price
specified in the Agreement.
EGI sought to enforce the Chilean award in the U.S. District Court for the
Southern District of Florida by filing a petition to confirm the international
arbitration award under the Federal Arbitration Act (“FAA”). Over Mr. Coderch’s
objections, the District Court confirmed the award as requested by EGI. Mr.
Coderch raises two errors on appeal. First, he claims that he was not properly
served in Brazil under Brazilian law. Second, he argues that the District Court
should not have confirmed the award because (a) it was a non-final arbitration
2
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award, and (b) EGI’s requested relief substantially modified the award. We agree
with the District Court that service was proper, and that this arbitration award
should be confirmed. However, we vacate the District Court’s order and remand
with instructions to correct two errors that the Court committed in enforcing the
award.
I.
On October 19, 2005, EGI purchased 4.24 million preferred shares in a
Chilean wine company, Viña San Rafael S.A. 1 As part of that purchase, EGI
entered into a written Shareholders’ Agreement with the controlling shareholders
of Viña San Rafael. Relevant here, the Shareholders’ Agreement provides in
Section 10 that if the controlling shareholders breach certain covenants in the
Agreement, EGI would have a “put right,” meaning that EGI could force the
controlling shareholders to purchase from EGI all of EGI’s shares of preferred
stock. 2 Section 10 then fixes the price of those preferred shares at “one hundred
and three percent (103%) of the per share Preferred Liquidation Preference.”
Shareholders’ Agreement defines the “Preferred Liquidation Preference” as “a
1
Over the next several years, EGI purchased millions of additional shares in Viña San
Rafael, ultimately acquiring over 7.54 million shares—a nearly $20 million investment.
2
EGI could “put” some or all of its shares, and retained full discretion “to revoke its
exercised Put Right with respect to all or any part of the shares to be purchased anytime before
such shares are effectively transferred and paid for and thereafter shall not be obligated to sell
them.”
3
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liquidation preference in the amount of the Preferred Purchase Price per share, plus
4% per annum thereon (based on a 360-day year), compounded semi-annually
accruing from and after the date of the Preferred Closing.”3 “Preferred Purchase
Price” is in turn defined as “the purchase price per share paid by [EGI] for the
shares of Preferred Stock acquired by them pursuant to the Preferred Purchase
Agreement.” 4 To make it simpler: the put price for EGI’s preferred shares is equal
to the original price EGI paid for those shares, plus an additional 4% per year
(compounded semi-annually from the date that EGI purchased the shares), plus
another 3% on top of that amount.
Additionally, under Section 11, Mr. Coderch agreed to “unconditionally and
irrevocably guarantee[] the prompt payment when due and performance of the
obligations and liabilities of” several of the controlling shareholder entities,
3
The “Preferred Closing” is “the date of the payment of the shares of Preferred Stock
issued to [EGI],” or the “Payment Date.”
4
The Preferred Purchase Agreement is not included in the record on appeal, and the
Shareholders’ Agreement does not otherwise indicate the purchase price per share paid by EGI
for its shares of preferred stock. But we know what EGI paid for these shares because the
arbitrator listed the price in his ultimate award. According to the award, EGI purchased its initial
4.24 million shares of preferred stock at a price per share of UF 0.0782354. (UF is the Spanish
acronym for Unidad de Fomento, an inflation-controlled unit of account used in Chile.)
Although the award does not walk through each of EGI’s subsequent acquisitions of
preferred stock, it does list the date and price of each of these purchases in its final calculation of
the amount owed to EGI. Apparently, after this initial purchase of 4.24 million shares on
October 19, 2005, EGI purchased an additional 42,768 shares of preferred stock on August 2,
2006 at a price per share of UF 0.07366925; 748,435 shares of preferred stock on January 31,
2007 at a price per share of UF 0.060019; 620,508 shares of preferred stock on October 11, 2007
at a price per share of UF 0.0600191; and 1,892,738 shares of preferred stock on August 26,
2008 at a price per share of UF 0.03892127. See infra p. 6.
4
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including “the payment for shares of Preferred Stock purchased in connection with
the exercise of the Put Right.” The obligations and liabilities of the controlling
shareholders under the Shareholders’ Agreement are joint and several.
On October 13, 2009, EGI sought to exercise its put right, alleging several
breaches of the Shareholders’ Agreement by the controlling shareholders. 5 When
the controlling shareholders—and Mr. Coderch, as guarantor for his companies—
refused to pay for EGI’s shares in accordance with Section 10, it triggered the
arbitration clause of the Shareholders’ Agreement, and a years-long arbitration
ensued in Chile. Ultimately, on January 13, 2012, the Chilean arbitrator issued a
102-page Arbitration Award, finding that the controlling shareholders breached
several sections of the Shareholders’ Agreement, thus entitling EGI to exercise its
put right. It ordered the controlling shareholders to purchase, within ten days,
EGI’s preferred shares at the price agreed to in Section 10 of the Shareholders’
Agreement. It then laid out the method for calculating the purchase price with
respect to each of EGI’s separate acquisitions of preferred stock, tracking the
language of Section 10 outlined above:
This purchase transaction must be carried out at the price agreed to in
Section 10 of the Shareholder’s Agreement of Viña San Rafael S.A.,
that is to say:
5
EGI elected to exercise its put right with respect to all of its shares, and it has never
sought to revoke that put. See supra note 2.
5
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a) The sum of 4,240,000 shares of preferred stock must be bought and
paid for at a price equal to 103% of the Preferred Liquidation Price. The
Preferred Liquidation Price corresponds to the amount of the Preferred
Purchase Price per share, i.e., UF 0.0782354, plus 4% a year (based on
a year of 360 days), compounded semi-annually, starting from October
19, 2005.
b) The sum of 42,768 shares of preferred stock must be bought and paid
for at a price equal to 103% of the Preferred Liquidation Price. The
Preferred Liquidation Price corresponds to the amount of the Preferred
Purchase Price per share, i.e., UF 0.07366925, plus 4% a year (based
on a year of 360 days), compounded semi-annually, starting from
August 2, 2006.
c) The sum of 748,435 shares of preferred stock must be bought and
paid for at a price equal to 103% of the Preferred Liquidation Price. The
Preferred Liquidation Price corresponds to the amount of the Preferred
Purchase Price per share, i.e., UF 0.060019, plus 4% a year (based on a
year of 360 days), compounded semi-annually, starting from January
31, 2007.
d) The quantity of 620,508 shares of preferred stock must be bought
and paid for at a price equal to 103% of the Preferred Liquidation Price.
The Preferred Liquidation Price corresponds to the amount of the
Preferred Purchase Price per share, i.e., UF 0.0600191, plus 4% a year
(based on a year of 360 days), compounded semi-annually, starting
from October 11, 2007.
e) The sum of 1,892,738 shares of preferred stock must be bought and
paid for at a price equal to 103% of the Preferred Liquidation Price. The
Preferred Liquidation Price corresponds to the amount of the Preferred
Purchase Price per share, i.e., UF 0.03892127, plus 4% a year (based
on a year of 360 days), compounded semi-annually, starting from
August 26, 2008.
EGI filed a petition to confirm the Arbitration Award against Mr. Coderch in
the U.S. District Court for the Southern District of Florida on January 12, 2015. In
its petition, EGI performed the calculations laid out in the Arbitration Award and
6
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asked the District Court to direct Mr. Coderch to pay EGI $28,700,450.07.6 The
District Court issued a summons on March 30, 2015, and on April 20, 2015, EGI
filed a notice indicating that it had filed a request to serve process on Mr. Coderch
at his last known residence in Brazil pursuant to the Inter-American Convention on
Letters Rogatory (“Convention on Letters Rogatory”), Jan. 30, 1975, O.A.S.T.S.
No. 43, 1438 U.N.T.S. 288.
The Convention on Letters Rogatory facilitates the transmission of letters
rogatory 7 among its signatory countries, including for procedural acts such as
service of process. Under the Convention on Letters Rogatory and the Additional
Protocol to the Inter-American Convention on Letters Rogatory (“Additional
Protocol”), May 8, 1979, O.A.S.T.S. No. 56, 1438 U.N.T.S. 372, the originating
country’s Central Authority—established to carry out the country’s responsibilities
under the Convention on Letters Rogatory—transmits the letters rogatory to the
destination country’s Central Authority. The Central Authority in the destination
country then executes the letters rogatory in accordance with its own laws and
6
Although EGI included its calculations in an appendix to the petition, it did not specify
in the petition itself the final dollar amount it believed Mr. Coderch was obligated to pay. EGI
later filed a more detailed calculation and a proposed judgment that listed the final purchase
price when it filed its response brief in opposition to Mr. Coderch’s motions to quash and to
dismiss.
7
“In its broader sense in international practice, the term letters rogatory denotes a formal
request from a court in which an action is pending, to a foreign court to perform some judicial
act.” 22 C.F.R. § 92.54.
7
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procedural rules. Convention on Letters Rogatory, art. 10; Additional Protocol,
art. 4. Upon execution, the Central Authority of the destination country certifies
that the letters rogatory were executed in accordance with local law and returns the
executed letters rogatory to the Central Authority in the originating country. Both
the United States and Brazil are signatories to the Convention on Letters Rogatory
and its Additional Protocol.
Because this process can take at least twelve months to complete, EGI
moved, on May 7, 2015, for an extension of time to effectuate foreign service of
process on Mr. Coderch pursuant to the Convention on Letters Rogatory. The
District Court granted EGI’s request and administratively closed the case until
service was carried out.
Once Brazil’s Central Authority received the Letter Rogatory from the
United States, it attempted, unsuccessfully, to serve Mr. Coderch multiple times at
various addresses; later it dispatched a bailiff, who apparently was unable to locate
Mr. Coderch at his last known address. During the bailiff’s latest attempt to serve
Mr. Coderch on November 1, 2016, the bailiff was informed that Mr. Coderch was
living at a finca (a farm) in Paraguay. On December 5, 2016, a Paraguayan notary
attempted to locate the finca but could not find any record of it. So, EGI submitted
a request to the Brazilian Superior Court of Justice (“STJ”) to serve Mr. Coderch
via a special procedure for constructive service under Brazilian law called citação
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por hora certa (“hora certa”), which translates to “service of process at a
designated time.”
Under Articles 252 and 253 of the Brazilian Code of Civil Procedure, a
Brazilian court may authorize hora certa service on an individual if service was
attempted twice unsuccessfully and there is reason to suspect that the individual is
concealing himself from service. Aff. of Pedro Oliveira da Costa, ¶¶ 11–12, nn.1–
2, ECF No. 16-7; Decl. of Keith S. Rosenn, ¶¶ 19–20, ECF No. 21-3; Decl. of José
Roberto dos Santos Bedaque, ¶¶ 10–12, ECF No. 30-2.8 To accomplish hora certa
service, a court official must attempt to serve the summons twice at the
individual’s address. da Costa Aff. ¶ 12. If he is still unsuccessful, he must notify
a family member, neighbor, or doorman at that address that he will return on the
next day at a designated time to attempt service a third time. Id. If the target of
service still cannot be located at the address after this third attempt at service, the
official may leave a copy of the summons and complaint with a family member,
neighbor, or doorman, and the target is deemed constructively served under
Brazilian law.
Id. ¶¶ 12–15.
Here, the STJ specifically authorized hora certa service on Mr. Coderch.
The bailiff returned to Mr. Coderch’s Brazilian apartment on April 6 and 11, 2017,
8
“In determining foreign law, the court may consider any relevant material or source,
including testimony, whether or not submitted by a party or admissible under the Federal Rules
of Evidence.” Fed. R. Civ. P. 44.1.
9
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to attempt service. After both attempts were unsuccessful, he notified the doorman
that he would attempt service one final time on April 12, 2017, at 2:00 p.m. The
bailiff returned on April 12 but again could not find Mr. Coderch. The bailiff thus
left the summons and copies of the court documents with the doorman. On May
11, 2017, the STJ confirmed that Mr. Coderch had been properly served via the
hora certa process, and on June 8, 2017, the Brazilian Ministry of Justice and
Public Security returned the Letter Rogatory to the United States, indicating that
Mr. Coderch had been validly served under Brazilian law.
After the Letter Rogatory was returned and filed with the District Court, the
District Court reopened the case. Mr. Coderch moved to quash the foreign service
of process under Rule 12(b)(4) of the Federal Rules of Civil Procedure, claiming
that service was invalid under Brazilian law. He also moved to dismiss the petition
to confirm the Arbitration Award, arguing, inter alia, that the Award cannot be
recognized because it is not a money judgment and that recognition of the Award
as requested by EGI would substantially modify the Award. The District Court
denied both motions. It first held that it could not review the Brazilian court’s
determination that service of process had been carried out in accordance with
Brazilian law; but even if it could, it found that Mr. Coderch had not presented
persuasive evidence that service was insufficient. The Court then held that the
10
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Award should be confirmed, rejecting each of Mr. Coderch’s arguments. Mr.
Coderch now appeals.
II.
We turn first to the sufficiency of service of process in Brazil. When
reviewing an order resolving a defendant’s challenge to service of process, we
review the district court’s legal conclusions, including the district court’s
interpretation of foreign law in determining the sufficiency of service, de novo and
its findings of fact for clear error. Prewitt Enters., Inc. v. Org. of Petroleum Exp.
Countries, 353 F.3d 916, 920–21 (11th Cir. 2003).
In this case, EGI chose to serve Mr. Coderch pursuant to the Convention on
Letters Rogatory and its Additional Protocol. Under the Convention on Letters
Rogatory, “[l]etters rogatory shall be executed in accordance with the laws and
procedural rules of the State of destination,” here, Brazil. Convention on Letters
Rogatory, art. 10. The Convention on Letters Rogatory further provides that “the
State of destination shall have jurisdiction to determine any issue arising as a result
of the execution of the measure requested in the letter rogatory.” Convention on
Letters Rogatory, art. 11. Here, a Brazilian court determined both that service via
the hora certa procedure was warranted and that hora certa service had been
carried out in accordance with Brazilian law. The District Court determined that it
would be improper for the Court to review a decision by the Brazilian court that
11
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service of process was carried out in accordance with Brazilian law. We also see
no reason to disturb the Brazilian court’s rulings. Principles of comity 9 counsel
against reviewing a foreign court’s determination regarding the interpretation and
application of the foreign country’s own laws—especially here, where the
operative treaty confers jurisdiction over the issue to the foreign court.
In evaluating whether comity is appropriate, we consider “(1) whether the
judgment was rendered via fraud; (2) whether the judgment was rendered by a
competent court utilizing proceedings consistent with civilized jurisprudence; and
(3) whether the foreign judgment is prejudicial, in the sense of violating American
public policy because it is repugnant to fundamental principles of what is decent
and just.” Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1519 (11th Cir.
1994) (internal citations omitted). We also consider “whether ‘the central issue in
9
International comity refers to “[t]he extent to which the law of one nation, as put in
force within its territory, whether by executive order, by legislative act, or by judicial decree,
shall be allowed to operate within the dominion of another nation.” Hilton v. Guyot, 159 U.S.
113, 163,
16 S. Ct. 139, 143 (1895); GDG Acquisitions, LLC v. Gov’t of Belize,
749 F.3d 1024,
1030 (11th Cir. 2014). As the Supreme Court has explained:
When . . . [a] foreign judgment appears to have been rendered by a competent court,
having jurisdiction of the cause and of the parties, and upon due allegations and
proofs, and opportunity to defend against them, and its proceedings are according
to the course of a civilized jurisprudence, and are stated in a clear and formal record,
the judgment is prima facie evidence, at least, of the truth of the matter adjudged;
and it should be held conclusive upon the merits tried in the foreign court, unless
some special ground is shown for impeaching the judgment, as by showing that it
was affected by fraud or prejudice, or that by the principles of international law,
and by the comity of our own country, it should not be given full credit and effect.
Hilton, 159 U.S. at 205–06, 16 S. Ct. at 159–60.
12
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dispute is a matter of foreign law and whether there is a prospect of conflicting
judgments.’” Daewoo Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1258
(11th Cir. 2006) (quoting Ungaro-Benages v. Dresdner Bank AG,
379 F.3d 1227,
1238 (11th Cir. 2004)).
Mr. Coderch argues that the Brazilian STJ’s decision to authorize hora certa
service is not entitled to comity because (1) it was the product of an ex parte
proceeding in which he had no opportunity to defend himself, and (2) it was
procured by fraud. As to his first argument, Mr. Coderch claims that he lacked any
fair opportunity to defend himself in the Brazilian court because, if he had
appeared to challenge service or the hora certa procedure, he would have been
automatically deemed served under Brazilian law. Thus, he could not have
challenged service in the Brazilian courts, like the District Court suggested,
because to challenge service in Brazil would have been to waive service.
It is true that if Mr. Coderch had attempted to challenge service in Brazil, he
would be deemed served under Brazilian law upon appearing in court. But that is
why, in cases dealing with constructive service such as the hora certa service at
issue here, Brazilian law provides for the appointment of a lawyer from the Public
Defender’s Office to represent the interests of the individual who has not yet
appeared before the Brazilian court. da Costa Aff. ¶ 11, n.4, ECF No. 30-1. In this
case, a Special Guardian from the Public Defender’s Office represented Mr.
13
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Coderch in defending against service in the Brazilian tribunal. That Public
Defender apparently made multiple challenges to the validity of service in the
Brazilian court on Mr. Coderch’s behalf, a fact Mr. Coderch does not dispute. As
such, we cannot say that the Brazilian tribunal failed to offer Mr. Coderch a fair
opportunity to defend against service in Brazil.
With respect to his second argument, Mr. Coderch contends that the
evidence submitted to the STJ, which the STJ relied on in finding that Mr. Coderch
was concealing himself from service and authorizing hora certa service, was false.
Specifically, Mr. Coderch claims that the declaration presented to the STJ that
stated that his finca in Paraguay did not exist was false and misled the STJ, and
thus that the STJ’s factual determination that Mr. Coderch was attempting to evade
service was erroneous and, as a matter of Brazilian law, it should not have
authorized hora certa service. The District Court, however, found no evidence of
fraud, instead concluding that “ample evidence” substantiated the STJ’s finding
that Mr. Coderch was evading service of process. The District Court did not
clearly err in so finding, and we are not convinced that EGI’s (and the Paraguayan
notary’s) apparent inability to locate Mr. Coderch’s finca in Paraguay rises to the
level of fraud.
Accordingly, we hold that the District Court did not err in finding that
considerations of international comity counseled against reviewing the Brazilian
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court’s determination that Mr. Coderch had been properly served in accordance
with Brazilian law, especially since the Convention on Letters Rogatory commits
jurisdiction of this issue to the courts of Brazil. Therefore, the District Court
properly denied Mr. Coderch’s motion to quash service under Rule 12.
III.
We turn next to Mr. Coderch’s argument that the District Court erred in
confirming the Arbitration Award. “On an appeal of a district court’s decision to
confirm or vacate an arbitration award, we review the district court’s resolution of
questions of law de novo and its findings of fact for clear error.” Rintin Corp., S.A.
v. Domar, Ltd., 476 F.3d 1254, 1258 (11th Cir. 2007).
Both parties agree that this Arbitration Award is governed by the Inter-
American Convention on International Commercial Arbitration (the “Panama
Convention”), Jan. 30, 1975, O.A.S.T.S. No. 42, 1438 U.N.T.S. 245. Chapter 3 of
the FAA, 9 U.S.C. §§ 301–307, implements the Panama Convention. Relevant
here, § 302 incorporates by reference § 207 of the FAA, which provides that a
federal court must confirm an arbitration award “unless it finds one of the grounds
for refusal or deferral of recognition or enforcement of the award specified in the
said Convention.”10 9 U.S.C. § 207. Article 5 of the Panama Convention lists
10
The “said Convention” referred to in § 207 is the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), June
10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3, the predecessor to the Panama Convention. There is
15
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seven grounds for refusing to recognize an arbitration award: (1) incapacity or
invalidity of the agreement, (2) lack of notice, (3) that the decision concerns a non-
arbitrable dispute, (4) violation of the arbitration agreement or relevant law in
carrying out the arbitration, (5) “[t]hat the decision is not yet binding on the parties
or has been annulled or suspended,” (6) “[t]hat the subject of the dispute cannot be
settled by arbitration under the law of [the State of recognition],” and (7) “[t]hat
the recognition or execution of the decision would be contrary to the public policy
(ordre public) of [the State of recognition].” Panama Convention, art. 5. Mr.
Coderch does not claim to be invoking one of these exceptions as a basis for
refusing to confirm the Arbitration Award.
Instead, Mr. Coderch argues that the Award was not confirmable for two
reasons. First, he argues that the Award left undecided several issues relating to
the purchase price that render the Award non-final. And, he says, although the
Panama Convention is silent on whether non-final awards may be confirmed, as a
general matter we lack jurisdiction to confirm a non-final arbitration award. See
Savers Prop. & Cas. Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburg, 748 F.3d
708, 717–19 (6th Cir. 2014) (holding that the court lacked jurisdiction to review an
interim award that resolved only issues of liability and reserved for a later date the
no substantive difference between the two as relevant here. Moreover, in incorporating § 207
into Chapter 3 of the FAA, § 302 specifies that “the Convention” shall mean the Panama
Convention for purposes of Chapter 3.
16
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question of computing damages). He asks us to send the dispute back to the
arbitrator to decide these issues in the first instance. Second, he argues that
confirming the Award as requested by EGI improperly modifies the Award from
an order of specific performance to an award for money damages. We review each
argument in turn.
A.
Coderch first argues that the Award cannot be confirmed because it did not
fully resolve the parties’ disputes regarding the purchase price. As explained
above, the Arbitration Award provides a detailed formula, tracking precisely the
language of Section 10 of the Shareholders’ Agreement, for calculating the price of
the shares that EGI was entitled to sell pursuant to its put right, based on the initial
Preferred Purchase Price per share identified in the Award. The only thing the
Arbitration Award does not do is perform the calculations. Despite this, Mr.
Coderch claims that the Award is non-final because the formula fails to specify the
currency in which the purchase is to be made—it provides as a starting point for
the calculation a sum in UF, which is not a currency but an inflation index, and
fails to specify a conversion date for purposes of converting the UF figures into an
appropriate currency. He argues that EGI improperly calculated the amount owed
to it under the Award by converting the UF amount listed in the Award to U.S.
dollars, as opposed to Chilean pesos as the Shareholders’ Agreement contemplates.
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He claims that we must remand this dispute so that the arbitrator can decide the
appropriate currency.
As an initial matter, we can find nothing in the Shareholders’ Agreement
that requires the shares purchased pursuant to the put right to be paid for only in
Chilean pesos, as Mr. Coderch claims. The Arbitration Award certainly does not
require as much, given that it directs the purchase price to be calculated in terms of
UF. But regardless, EGI did initially convert the UF figure listed in the Award to
Chilean pesos, before eventually converting it into U.S. dollars for purposes of
confirmation in the District Court.
Moreover, the currency in which the Award is ultimately paid does not
matter so much—as far as value goes—as long as the appropriate conversion date
is used. That brings us to the parties’ next disagreement. EGI converted the
Award amount from UF to pesos to U.S. dollars using the exchange rate on the
date that payment was due under the Award: January 23, 2012. 11 EGI argues this
was appropriate because, according to the “breach day” rule, foreign arbitration
awards should be converted to U.S. dollars on the date of the award. Mr. Coderch
11
The arbitrator rendered a decision on January 13, 2012, requiring Mr. Coderch to
purchase all of EGI’s shares within ten business days from the date of the Award. That means
that performance under the Award was due on January 27, 2012. In arriving at the January 23
date, EGI apparently counted ten total days, including Saturdays and Sundays, from the date of
the Award. Nonetheless, this mistake does not affect our conclusion because, as explained
below, we find that the proper conversion date is in fact January 13, 2012.
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argues that this gives EGI an inflated award, and that the appropriate conversion
date is the date of the “Preferred Closing” in the Shareholders’ Agreement. He
also argues that because the Award itself does not provide the conversion date, the
Award is non-final, and we should send the matter back to the arbitrator to decide
in the first instance.
While the Arbitration Award does not specify a conversion date, that
omission alone does not render the Award non-final if the conversion date is
established as a matter of law. The Supreme Court has laid out two options for
determining the proper date on which to convert foreign currency into U.S. dollars.
The first, established in Hicks v. Guinness, 269 U.S. 71,
46 S. Ct. 46 (1925), and
known as the “breach day” rule, applies when the plaintiff’s cause of action arises
under U.S. law. See Jamaica Nutrition Holdings, Ltd. v. United Shipping Co.,
643
F.2d 376, 380 (5th Cir. April 24, 1981).12 In that case, the applicable exchange
rate is the rate that was in effect on the date that the plaintiff’s cause of action
arose.
Id. In Hicks, a breach-of-contract case, that meant that German marks
should be converted into U.S. dollars on the date the contract was breached.
See
269 U.S. at 80, 46 S. Ct. at 47. The Supreme Court reasoned that at the time of
breach the plaintiff had a claim under U.S. law for damages in U.S. dollars.
12
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding all Fifth Circuit precedent prior to October 1, 1981.
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Jamaica Nutrition Holdings, 643 F.2d at 380 (quoting
Hicks, 269 U.S. at 80, 46 S.
Ct. at 47).
The second method, based on the Supreme Court’s decision in Die Deutsche
Bank Filiale Nurnberg v. Humphrey, 272 U.S. 517,
47 S. Ct. 166 (1926), applies
when the suit is based entirely on an obligation existing under a foreign country’s
laws and the debt is payable in that country’s currency. Jamaica Nutrition
Holdings, 643 F.2d at 380. In that case, the parties assume the risk of currency
fluctuations and the applicable exchange rate is the rate in effect on the date of the
final decree or judgment.
Humphrey, 272 U.S. at 518–19, 47 S. Ct. at 166–67;
Jamaica Nutrition
Holdings, 643 F.2d at 380. This is known as the “judgment
day” rule.
To determine which rule is applicable, we look to the jurisdiction in which
the plaintiff’s cause of action arose. See In re Good Hope Chem. Corp., 747 F.2d
806, 811 (1st Cir. 1984). This is a suit under the FAA to confirm an international
arbitration award. Thus, the FAA, which implements the Panama Convention, is
the source of EGI’s cause of action. While the underlying dispute between EGI
and Mr. Coderch in arbitration regarding the breach of the Shareholders’
Agreement was governed by Chilean law, EGI’s cause of action here derives
entirely from U.S. law, namely the right under the FAA to have an international
arbitration award confirmed by a U.S. court. Therefore, because EGI’s cause of
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action arises under U.S. law, the District Court properly understood that the
purchase price owed to EGI under the Award should be converted to U.S. dollars
according to the breach day rule.
However, the District Court clearly erred in accepting the date suggested by
EGI—January 23, 2012—as the appropriate date for conversion under the breach
day rule. The breach day rule requires conversion using the exchange rate on the
date that the cause of action arose. A cause of action arises under § 207 of the
FAA as soon as an arbitration award “is made.” See 9 U.S.C. § 207 (“Within three
years after an arbitral award falling under the Convention is made, 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.” (emphasis
added)); see also Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co.,
Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572, 581 (2d Cir.
1993), as amended (May 25, 1993) (interpreting “made” in § 207 as referring to
when the award is actually decided by the arbitrator, and thus finding that the
three-year statute of limitations begins to run once the arbitration award is issued).
In other words, an arbitration award becomes confirmable under the Panama
Convention and the FAA as soon as it is issued. EGI thus had a cause of action
under the FAA as soon as the Arbitration Award issued in Chile on January 13,
2012. As such, the proper conversion date under the breach day rule is January 13,
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2012. The District Court therefore clearly erred in accepting EGI’s calculations,
which converted UF to pesos to U.S. dollars on January 23, 2012.
B.
Lastly, Mr. Coderch contends that the District Court should not have
confirmed the Arbitration Award as requested by EGI because the Award was
really an order of specific performance, forcing the controlling shareholders’
compliance with Section 10 of the Shareholders’ Agreement, and not an award of a
sum of money. He argues that enforcing the Arbitration Award as a money
judgment gives EGI a windfall, allowing EGI to collect an inflated purchase price
without any obligation to turn over the shares.13
Mr. Coderch is correct that the Arbitration Award is properly understood as
ordering specific performance of the parties’ obligations under Section 10—
namely, the purchase by Mr. Coderch and the sale by EGI of EGI’s shares of
preferred stock. As the arbitrator noted throughout the Award, EGI had sought
forcible compliance with the terms of the Shareholders’ Agreement. And Section
10 of the Shareholders’ Agreement makes clear that the parties contemplated the
simultaneous transfer of stock for cash by providing that “[a]t the time of each one
13
Despite having exercised its put right, EGI continues to hold onto the shares. It
represents here, as it did in the District Court, that it is willing and prepared to transfer the shares
once Mr. Coderch makes the requisite payment. EGI has chosen not to transfer the shares yet
because EGI fears that it would substantially weaken its economic position if it had neither the
shares nor the money to which it is entitled.
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of such purchases [of preferred stock made pursuant to the put right], the
respective number of relevant shares of Preferred Stock shall be transferred to the
Put Buyer against full payment in cash for such shares” (emphases added). That
simultaneous exchange of shares for money is what the arbitrator ordered. To the
extent that the District Court enforced the Arbitration Award as a money judgment,
the District Court erred.
That said, Mr. Coderch offers no reason why an arbitration award ordering
specific performance, as opposed to money damages, is not confirmable under the
Panama Convention. The Panama Convention makes no exception for the
recognition of arbitration awards ordering specific performance. See generally
Panama Convention, art. 5. And, as explained above, a district court can refuse to
confirm an arbitration award only if one of the enumerated exceptions in the
Panama Convention applies. Accordingly, we find that the Award was
confirmable under the Panama Convention and the FAA.
The fact that the Award is an order of specific performance, as opposed to a
money judgment, might be irrelevant for purposes of determining whether the
Award is confirmable, but it is relevant to crafting the appropriate remedy.
Because the District Court viewed the Award as a money judgment as opposed to
an order of specific performance, it enforced only half of the Award: it ordered Mr.
Coderch to pay the put price for EGI’s shares but neglected to enforce the
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corresponding requirement that EGI tender those shares upon payment. Instead of
enforcing the Arbitration Award as requested by EGI, the District Court’s order
should have required Mr. Coderch to pay the purchase price set out in the
Shareholders’ Agreement and the Award and in exchange required EGI to tender
its shares.14 Because the District Court did not do this, it erred.
IV.
In conclusion, we hold that while the District Court properly found that the
Arbitration Award should be confirmed under the Panama Convention, the Court
committed two errors in enforcing that award. First, it clearly erred by accepting
EGI’s calculation of the purchase price due under the award, which used the wrong
conversion date. Second, it failed to fully enforce the Award by neglecting to
order EGI to tender its shares upon payment, as EGI is required to do under
14
To facilitate the transfer, the District Court could have then required both parties to
tender their performance to the Clerk of Court, as is customary in cases of forced sales, rather
than directly to each other. That way, once the Clerk receives the shares from EGI and the
payment from Mr. Coderch, he or she could effectuate the simultaneous transfer of shares for
money that the Shareholders’ Agreement and the Arbitration Award contemplate. Such an
approach would also ensure that neither party ends up with a windfall if the other reneges (as
each party here worries the other will do) and would put to rest this never-ending game of
chicken concerning who will perform first and risk ending up with nothing at all.
Of course, this still begs the question of how to enforce an order of specific performance
if one of the parties still refuses to perform. Fortunately, the District Court has plenty of tools in
its chest to deal with a party’s failure to comply with the Court’s own orders. For example, the
District Court might set a specific date on which performance under its order is due, and provide
that for every day after the deadline that the party refuses to comply, the District Court will
impose a hefty monetary fine on the offending party. Those accumulating fines would then be
enforceable as money judgments against the offending party.
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Section 10 of the Shareholders’ Agreement. We therefore VACATE the District
Court’s order and REMAND with the following instructions: (1) to recalculate the
purchase price of the shares using the January 13, 2012, conversion date; and (2) to
enter an order requiring both Mr. Coderch and EGI to perform their obligations
under Section 10 of the Shareholders’ Agreement by paying the purchase price for
the relevant shares, after proper calculation and conversion, and tendering those
shares, respectively.
SO ORDERED.
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