OPINION AND ORDER GRANTING MOTION FOR INJUNCTION IN AID OF ARBITRATION

ALVIN K. HELLERSTEIN, District Judge.

Petitioners and Respondent Accendo Banco, S.A. ("Accendo") are engaged in arbitration before the International Chamber of Commerce ("ICC") regarding their dueling claims that the other breached a contract (the "Purchase Agreement") to sell Petitioners' subsidiaries in Mexico to Accendo. Prior to the onset of this ICC arbitration, Petitioners terminated the Purchase Agreement, claiming that Accendo had materially breached its terms, and entered into discussions with third parties to sell the Mexican subsidiaries. Meanwhile, Accendo obtained an ex parte injunction from a Mexican court (the "Mexico Injunction"), enjoining Petitioners from selling the Mexican subsidiaries to any party other than Accendo. Petitioners, in response, on September 18, 2019, filed for injunctive relief in this Court, alleging that Accendo had covenanted in the Purchase Agreement not to seek pre-arbitral relief from any court outside the Southern District of New York or a New York state court of competent jurisdiction. On September 26, Accendo, in turn, applied to the ICC for an emergency arbitrator to grant substantially the same injunctive relief as that which Accendo obtained in the Mexico Injunction. On October 14, the arbitrator denied the application.

I grant Petitioners' motion for injunctive relief for the reasons set forth below.

Background

A. Relevant sections of the Purchase Agreement

The parties entered into the Purchase Agreement that underlies the present dispute in October 2016. See Purchase Agmt., ECF No. 1-1. Under the Purchase Agreement, Petitioners agreed to sell to Accendo, a Mexican bank, two of Petitioners' Mexican subsidiaries—one a bank (Deutsche Bank México, S.A., Institución de Banca Múltiple); the other, a broker-dealer (Deutsche Securities, S.A. de C.V., Casa de Bolsa); both owned by Petitioners' parent, Deutsche Bank AG. See Purchase Agmt., ECF No. 1-1, at A-1. At the time the parties entered into the Purchase Agreement, and ever since, Petitioners have been under pressure from Mexican regulatory authorities to sell their Mexican assets. See Petition, ECF No. 1, at ¶ 47.

In the Purchase Agreement, the parties agreed to submit all disputes relating to the Purchase Agreement to ICC arbitration in New York:

Purchase Agmt., ECF No. 1-1, at § 10.4.

This same section included a forum selection clause, in which the parties agreed that any and all injunctive relief sought in aid of arbitration would be submitted to the exclusive jurisdiction of the Southern District of New York, or the state courts in New York County:

Id.

B. The parties' conduct under the Purchase Agreement

Closing under the Purchase Agreement was subject to numerous conditions. As relevant for present purposes, Accendo covenanted that it would have sufficient funds by the time the transaction closed:

Purchase Agmt., ECF No. 1-1, at § 5.8. This covenant was designated a "Fundamental Representation" in the Purchase Agreement. Id. at § 1.1(eeee). Failure by Accendo to satisfy this or other "Fundamental Representations" by the closing date, gave Petitioners the right to terminate the contract:

Id. at § 7.3(a).

The Purchase Agreement further provided that if the closing did not occur by an "outside date" of October 31, 2017, Petitioners had the right to terminate the contract:

Id. at § 8.1(b). After two amendments, the outside date was adjourned to June 30, 2018. See First Amendment to the Purchase Agmt., Oct. 20, 2017, ECF No. 1-2; Second Amendment to the Purchase Agmt., Mar. 8, 2018, ECF No. 1-3.

The closing did not occur by June 30, 2018. Over the summer of 2018, each side contended the other was in breach of the Purchase Agreement. See Petition, ECF No. 1, at ¶ 35. Petitioners, in communicating their view that Accendo had breached, expressed repeated concern that Accendo did not possess the funds necessary to close the deal. See id.; see also Letter from Petitioners to Accendo, Feb. 13, 2018, ECF No. 13-4. On October 26, 2018, Petitioners terminated the Purchase Agreement pursuant to sections 7.3 and 8.1 thereof (excerpted above), due to the failure to achieve a closing by the then-outside date. See id. at ¶ 38.

C. The Mexico Injunction

Meanwhile, on April 2, 2018, Accendo obtained an injunction, ex parte from a Mexican court, which, after a later ex parte amendment thereto, enjoined Petitioner, an affiliate of Petitioner, and two Mexican regulatory entities, from selling, taking any action in furtherance of selling, or authorizing the sale of, the Mexican subsidiaries, to any party other than Accendo:

Mexico Injunction, ECF 1-4, at 5-6.

On September 9, 2019, a copy of the Mexico Injunction was, for the first time, served on Petitioners. Petition, ECF No. 1, at ¶ 44. Service of the Mexico Injunction brought to a halt Petitioners' ongoing negotiations with several would-be purchasers of the Mexican subsidiaries. Id. at ¶ 51.

D. Arbitration

On September 4, 2019, days before Petitioners first became aware of the Mexico Injunction, Accendo filed a request for ICC arbitration, seeking adjudication of their claim that Petitioner had breached the Purchase Agreement by refusing to consummate the deal. See Request for Arbitration, Sept. 4, 2019, ECF No. 31-1.

On September 18, 2019, Petitioners filed a petition to this Court, asking that Accendo be required to withdraw and/or cease enforcement of the Mexico Injunction because the Purchase Agreement requires pre-arbitral injunctions to be pursued only in the Southern District of New York or New York state courts. See Petition, ECF No 1.

On September 26, 2019, after the present proceedings were underway, Accendo filed an application with the ICC, in which Accendo asked for an emergency arbitrator to be appointed to enjoin the sale of Petitioners' Mexican subsidiaries to a third-party. See Application for Emergency Measures, September 26, 2019, ECF No. 31-2, at ¶ 92.

On October 14, 2019, the emergency arbitrator issued a written decision denying Accendo's request for injunctive relief. Decision, Oct. 14, 2019, ECF No. 32-2. The emergency arbitrator found that Accendo had kept the Mexico Injunction hidden from Petitioners until September 2019, that Accendo lacked any "legitimate reason for this delay," and thus any "urgency" attendant to the purported need for injunctive relief was of Accendo's "own making." Id. at ¶¶ 11.66-67. The arbitrator further found that Accendo had not shown it would face "irreparable harm if the requested measures [were] denied," reasoning that Accendo's claimed harm of losing the opportunity to consummate the Purchase Agreement could amount to harm only if Accendo were indeed "ready, willing and able to close on the terms set out in the Purchase Agreement." Id. at ¶ 11.71. The arbitrator found that Accendo lacks "the funds needed to close," id. at ¶ 11.74, and denied the relief sought by Accendo.

Discussion

A. Jurisdiction

Federal courts are charged with enforcing the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which covers arbitral agreements "arising out of a legal relationship ... [,] considered as commercial," and not "entirely between citizens of the United States." 9 U.S.C. §§ 201, 202. Actions "under the Convention shall be deemed to arise under the laws and treaties of the United States." Id. at § 203. Section 206 of this same title empowers courts to "direct that arbitration be held in accordance with the agreement at issue," id. at § 206, and the Second Circuit has held that "entertaining an application for a preliminary injunction in aid of arbitration is consistent with the court's powers pursuant to § 206," Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 826 (2d Cir. 1990). That an arbitration has already begun and the parties have appeared therein does not prevent a court from entertaining a request for interim relief. See id.; see also Venconsul N.V. v. Tim Intern. N.V., No. 03-cv-5387, 2003 WL 21804833, at *3 (S.D.N.Y. Aug. 6, 2003).

Accendo argues that jurisdiction is lacking here because the relief sought by Petitioners is not "in aid" of arbitration, since no term of the Mexico Injunction prevents the parties from continuing with the arbitration. I disagree. The Mexico Injunction affects both the remedial discretion of the arbitrator and the arbitration procedure agreed to by the parties.

1. The Mexico Injunction interferes with the remedies available in arbitration

The Mexico Injunction enjoins Petitioners from "any act, agreement, and/or contract, which purpose is, directly or indirectly, the sale of the [Mexican subsidiaries]" to any party other than Accendo. Mexico Injunction, ECF No. 1-4, at 5. The Mexico Injunction seeks on its face to freeze a sale of entities in a manner contrary to the arbitrator's possible ruling.

2. The Mexico Injunction violates the forum selection clause

The Mexico Injunction also compromises the arbitration procedure agreed to in the Purchase Agreement. The Purchase Agreement provides that any claim "relating to" or "arising out of" the agreement shall be submitted to ICC arbitration, and that pre-arbitral relief shall be subject "irrevocably and unconditionally" to the "exclusive jurisdiction" of the Southern District of New York or New York state courts of competent jurisdiction:

Purchase Agmt., at § 10.4(c), ECF No. 1-1, at 64. By running to the Mexican court to freeze the assets at issue in the Purchase Agreement, Accendo clearly violated its covenant to bring all pre-arbitral injunctions "irrevocably and unconditionally" before the Southern District of New York or New York state courts if the Southern District "does not have jurisdiction."

* * *

In sum, this Court has jurisdiction. The next question is whether the court should exercise its jurisdiction in aid of arbitration in the manner requested by Petitioners.

B. Injunctive Relief

The Second Circuit has outlined the standard for enjoining a party from pursuing parallel litigation in a foreign forum, drawing the applicable principles from China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33 (2d Cir. 1987):

Paramedics Electromedicina Comercial, Ltda. v. GE Medical Systems Information Tech., Inc., 369 F.3d 645 (2d Cir. 2004) (citing China Trade, 837 F.2d at 37). Decisions interpreting China Trade have held that (a) the parties need not be identical in both matters, so long as the "real parties in interest" are the same, see Motorola Credit Corp. v. Uzan, No. 02-CV-666, 2003 WL 56998 (S.D.N.Y. Jan. 7, 2003); and (b) the `additional factors' to be considered include

WTA Tour, Inc. v. Super Slam Ltd., 339 F.Supp.3d 390, 403 (S.D.N.Y. 2018) (quoting Keep on Kicking Music, Ltd. v. Hibbert, 268 F.Supp.3d 585, 590 (S.D.N.Y. 2017)).

WTA Tour, 339 F.Supp.3d at 403 (citing North American Soccer League, LLC v. United States Soccer Federation, Inc., 883 F.3d 32, 37 (2d Cir. 2018)).

1. Threshold Requirements

Petitioners satisfy China Trade's threshold requirements because (a) the Mexico Injunction and present action involve the same parties in interest, and (b) a resolution in this case will be dispositive as to the rights of the parties under the Purchase Agreement to seek relief in aid of arbitration from any court other than the Southern District of New York.

First, The Mexico Injunction involves the same parties. It was initiated by Accendo, and binds Petitioners and an affiliate of Petitioners ("Deutsche Bank Mexico, S.A., Institucion De Banca Multiple"). Mexico Injunction, ECF No. 1-4. Naming the affiliate does not change the real parties in interest. See WTA Tour, 339 F.Supp.3d at 403 (substantial similarity when an "additional part[y]" was an "affiliate[] of the existing parties").

That the Mexico Injunction also purports to bind two Mexican regulatory entities is also irrelevant. These regulators are tasked with "approv[ing] any sale transaction involving [Petitioners' Mexican subsidiaries]." Mem. in Opp. to Pet., ECF No. 17, at 7; See Mexico Injunction, ECF No. 1-4. The regulatory entities are not necessary parties. If Petitioners are enjoined from taking any action to dispose of the subsidiaries, enjoining the regulatory entities from approving any such disposal is redundant. See Motorola Credit Corp. v. Uzan, No. 02-cv-666, 2003 WL 56998, at *2 (S.D.N.Y. Jan. 7, 2003) (substantial similarity when additional parties "were not necessary" to achieve the result sought in both parallel actions).

As to the second China Trade threshold requirement, a ruling here, e.g., holding that the Mexico Injunction was obtained in violation of the Purchase Agreement, will be dispositive of the Mexico Injunction.

Thus, the two China Trade threshold criteria are satisfied.

2. Discretionary Factors

The China Trade discretionary factors also favor injunctive relief by this Court. The Purchase Agreement designates New York as the exclusive forum for pre-arbitral injunctive relief. Accendo's noncompliance with this proviso runs contrary to this Circuit's "strong public policy in favor of forum selection and arbitration clauses," Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1361 (2d Cir. 1993) (quotation marks omitted). The Mexico Injunction plainly attempts to "sidestep" or make an "end run[]" around the Purchase Agreement's forum selection clause, and that cannot be permitted. Storm LLC v. Telenor Mobile Comms. AS, No. 06-cv-13157, 2006 WL 3735656, at *9 (S.D.N.Y. Dec. 15, 2006) (if a party "attempt[s] to sidestep arbitration ... little else is required to authorize an injunction) (quotation marks omitted); Int'l Equity Investments, Inc. v. Opportunity Equity Partners Ltd., 441 F.Supp.2d 552, 553 (S.D.N.Y. 2007) ("[A]ttempts to make end runs around the forum selection clause and this Court's jurisdiction cannot be tolerated. Indeed, the justification for an anti-suit injunction crests when a party seeks the aid of a foreign proceeding in a blatant attempt to evade the rightful authority of the forum court.").

3. Preliminary Injunction Requirements

The traditional requirements for injunctive relief, namely (a) likelihood of success on the merits, (b) irreparable harm, and (c) consistency with public interest, are satisfied here.

i. Likelihood of Success

Petitioners are likely to succeed on the merits of their claim that the Mexico Injunction was obtained in violation of the Purchase Agreement. The forum selection clause is clear, and does not allow a contracting party to seek a pre-arbitral injunction from a court outside the ICC, the Southern District of New York, or, if the Southern District lacks jurisdiction, the New York state courts of competent jurisdiction.

Accendo argues that the operative question is whether Petitioners are likely to succeed on the underlying contract disputes in the arbitration. See Mem. in Opp. to Pet., ECF No. 17, at 25. But, as other courts in this district have concluded, the correct question is whether Petitioners are likely to succeed on their claim that obtaining the Mexico Injunction in the first instance ran afoul of the Purchase Agreement, not who is likely to win the arbitration itself. See, e.g., WTA Tour, 339 F.Supp.3d at 406 ("Petitioners are correct that the relevant inquiry is the likelihood of success on the merits of their argument that the claims must be submitted to arbitration—not, as respondents claim, on the merits of the substantive ... claims."); Int'l Fashion Products, B.V. v. Calvin Klein, Inc., No. 95-cv-0982, 1995 WL 92321, at *2 (S.D.N.Y. Mar. 7, 1995); Storm, 2006 WL 3735657, at *8.2

ii. Irreparable Harm

Petitioners argue that they face irreparable harm absent an injunction because the Mexico Injunction threatens to (a) force Petitioners to litigate in a forum they contracted to avoid; and (b) thwart Petitioners' attempt to sell their Mexican subsidiaries, leaving Petitioners without monetary redress due to Accendo's tenuous financial condition. These factors, taken together, demonstrate irreparable harm.

For one thing, it is undeniable that dragging Petitioners into litigation in a court other than the court having exclusive jurisdiction under the Purchase Agreement constitutes irreparable harm. See, e.g., WTA Tour, 339 F.Supp.3d at 406 ("Petitioners will suffer irreparable harm if they are forced to litigate rather than arbitrate this dispute. Even if they ultimately prevail in the foreign proceedings, they will have lost the very benefit of the arbitration clause, which was to avoid litigation.").

For another thing, sales of business assets are sensitive, depending on timing, market conditions, and other dynamics. A transaction that is lost is hard to replace. If Accendo is permitted to enforce the Mexico Injunction to prevent a sale of the subsidiaries to a third party, another equivalent transaction may become speculative.3

Accendo argues that Petitioners can seek money damages. Mem. in Opp. to Pet., ECF No. 17, at 24. But Accendo's precarious financial position defeats this argument. Many courts inside and out of this Circuit have recognized that even when loss can be compensated with money, the harm may be irreparable if damages are likely to be unobtainable from the target of injunctive relief. See, e.g., In re Feit & Drexler, Inc., 760 F.2d 406, 416 (2d Cir. 1985); Itek Corp. v. First National Bank, 730 F.2d 19, 22-23 (1st Cir. 1984); Hughes Network Sys. Inc. v. InterDigital Commc'ns Corp., 17 F.3d 691, 694 (4th Cir. 1994); Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 386 (7th Cir. 1984); Hoxworth v. Blinder, Robinson & Co., 903 F.2 186, 205-06 (3d Cir. 1990), holding modified, 42 F.3d 1421 (3d Cir. 1994). The record here suggests that there is very good reason for Petitioners' concerns. Indeed, Accendo's limited funds seem to have contributed in large part to Accendo's inability to close. See, e.g., Letter from Petitioners to Accendo, Feb. 13, 2018, ECF No. 13-4. As the emergency arbitrator found, "even assuming [Accendo] is right about the amount of money needed to close, this is more than the ... total capital it currently claims to have." Decision, Oct. 14, 2019, ECF No. 32-2, at ¶ 11.74. And indeed, Accendo itself appears to have doubts about its ability to sustain operations in the event of an adverse result in the parties' arbitration:

The Purchase Agreement recognizes this difficulty and provides by agreement that damages from a breach would be "extensive and irreparable":

Purchase Agmt., at § 10.13, ECF No. 1-1, at 70. Although "`contractual language declaring money damages inadequate in the event of a breach does not control ... whether ... injunctive relief is appropriate,'" A.X.M.S. Corp. v. Friedman, 948 F.Supp.2d 319, 337 (S.D.N.Y. 2013) (quotation marks and emphasis omitted), such language is "one factor that must be considered in deciding whether irreparable harm would result if an injunction did not issue," particularly in a contract between sophisticated parties. Markovits v. Venture Info Cap., Inc., 129 F.Supp.2d 647, 661 (S.D.N.Y. 2001) (citing North Atl. Instruments v. Haber, 188 F.3d 38, 49 (2d Cir. 1999)).

In sum, I find that Petitioners have shown the likelihood of irreparable harm.

iii. Public Interest

Finally, I find that public interest, specifically the "strong public interest in enforcing contracts" between sophisticated entities, Espiritu Santo Holdings, LP v. Llbero Partners, LP, No. 19-cv-3930, 2019 WL 2240204, at *26 (S.D.N.Y. May 14, 2019), favors granting the requested injunctive relief here.

Conclusion

For the foregoing reasons, the petition for injunctive relief is granted. The Clerk shall enter judgment providing that (a) Accendo is ordered to withdraw the Mexico Injunction, and take all steps necessary to achieve such a withdrawal before the Mexico City Court; (b) Accendo is ordered to refrain from enforcing the Mexico Injunction while it remains in effect; and (c) costs shall be taxed against Accendo.

SO ORDERED.