REGGIE B. WALTON, District Judge.
Currently before the Court is an amended petition filed by petitioner International Trading and Industrial Investment Company, formerly known as International Trading and Investment Company ("International Trading"), to confirm an arbitral award (the "Award") rendered in its favor and against respondents DynCorp Aerospace Technology and its affiliated companies under the Federal Arbitration Act, 9 U.S.C. § 207 (2000) (the "FAA"),
The following facts in this case are undisputed unless otherwise noted. "DynCorp. . . is an American company that . . . provides logistical support and security services to the [United States] Armed Forces in Qatar." Resp'ts' Opp'n at 3. On July 17, 1998, DynCorp entered into an agreement (the "Agreement" or "1998 Agreement") with International Trading, "under which [International Trading] was appointed as [a] service agent for the purpose of establishing, operating[,] and maintaining a licensed branch office [for DynCorp] in the State of Qatar." Am. Pet. ¶ 24. International Trading's specific "duties under the Agreement included assisting DynCorp in obtaining all licenses and permits required to establish a branch office; advising it regarding importing and exporting equipment, spares[,] and stores; and advising and assisting it in dealings with government ministries, departments, and agencies," id. ¶ 26, so that ultimately DynCorp could "obtain[] . . . contracts to provide security services in Qatar," id. ¶ 27. The Agreement was written in both Arabic and English, Resp'ts' Opp'n at 4; Pet'r's Reply at 11, with the Arabic version
The duration of the contract was governed by Section 9. 1, which stated the following:
Id., Ex. A (the 1998 Agreement) at 12. On September 24, 2001, DynCorp sent a letter to International Trading evincing its intent to terminate the agreement on December 23, 2001. Am. Pet. ¶ 30. International Trading disputed DynCorp's ability to terminate the agreement because it believed that "the Agreement could not be terminated until after the expiration of the base period of sixty months," which would not have been until July 20, 2003. Id. DynCorp's position was that "the maximum term of the Agreement was sixty months, and that either party could terminate [the Agreement] upon ninety days notice one year after the . . . Agreement was signed." Resp'ts' Opp'n at 5. Unable to resolve this dispute on their own, International Trading initiated arbitration proceedings before the International Chamber of Commerce (the "ICC") under Section 13.1 of the Agreement.
Pursuant to the ICC Rules, the ICC selected Paris, France as the site for the arbitration, id. ¶ 34, to which neither party objected, see id. ¶ 35. The parties also agreed that Qatari law governed the resolution of any substantive questions in the case, and that the ICC Rules would apply to any procedural issues that arose during the proceedings. Id. On May 29, 2006, the arbitrator issued a written decision in which he concluded that DynCorp breached the Agreement because Section 9.1 required the Agreement to remain in effect "for a period of `sixty months from the date of signature and shall continue thereafter, unless and until terminated,' i.e., the initial term of the Agreement is 60 months and the Agreement will continue after the initial term until terminated by either party," Pet'r's Mem., Ex. A (May 29, 2006 Arbitral Award ("the Award")) at 23 (emphasis omitted in part), and DynCorp had announced its intention to terminate the agreement prior to that date, Am. Pet. ¶ 41. The arbitrator rejected DynCorp's position to the contrary, noting that
Pet'r's Mem., Ex. A (Award) at 24. As a result of the breach, the arbitrator concluded that International Trading was entitled to $1,107,764.95 for damages, Am. Pet. ¶ 45, $40,000 for costs, and interest of 5% per annum, id. ¶ 46.
On July 23, 2006, DynCorp pursued a stay of the Award before the Qatari Court of First Instance, arguing that "the [a]rbitration suffered from procedural defects," but was denied relief, Resp'ts' Opp'n at 8. DynCorp then appealed to the Qatari Court of Appeal, which concluded that the dispute "was resolved on correct, suitable, and accepted . . . law," id., Ex. D (Decision of Qatari Court of Appeal) at 12-13, but while the court upheld the arbitrator's award of damages and costs, it vacated the award of 5% interest, Resp'ts' Opp'n at 9. Soon thereafter, DynCorp appealed to the Qatari Court of Cassation, which is the court of last resort in the State of Qatar. Id. After consideration of the matter, the Court of Cassation concluded "that the arbitrator failed to follow Qatari law by improperly interpreting the 1998 Agreement in light of the parties' intentions." Id. at 10. The Court of Cassation found that the arbitrator's interpretation of the Agreement "goes against the apparent meaning of the contract conditions," and that the arbitrator's reading of the Agreement was a "misinterpretation of facts," as well as "error [regarding] the implementation of the law." Id. According to DynCorp, International Trading did not object to jurisdiction before any of the Qatari tribunals and voluntarily participated in the proceedings. See id. at 8-10.
On April 30, 2009, International Trading filed its petition in this Court, which it later amended on May 22, 2009, requesting that the Court confirm the Award pursuant to 9 U.S.C. § 207, as well as Article IV of the New York Convention. Am. Pet. at 1. In response, DynCorp moved on July 31, 2009, to have the Court deny confirmation of the Award, arguing that the Court of Cassation "was a valid authority to set aside the Award," and that in any event, recognition of the Award should be denied "under Chapter 2 of the FAA."
Pursuant to 9 U.S.C. § 207, the Court is required to "confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the [New York] Convention." Those specified grounds can be found under Article V of the Convention. Specifically, Article V(1) authorizes the Court to deny confirmation of the arbitral award under the following circumstances:
Furthermore, Article V(2) of the Convention provides the Court with two additional grounds for denying recognition of an arbitral award:
As one federal circuit court has observed, "[t]here is now considerable case[]law holding that . . . the grounds for relief enumerated in Article V of the Convention are the only grounds available for [denying recognition or enforcement] of a [foreign] arbitral award." Yusuf Ahmed Alghanim & Sons v. Toys "R" Us, Inc., 126 F.3d 15, 20 (2d Cir.1997) (emphasis added) (citing M & C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851 (6th Cir.1996); Int'l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial Y Comercial, 745 F.Supp. 172, 181-82 (S.D.N.Y.1990); Brandeis Intsel Ltd. v. Calabrian Chems. Corp., 656 F.Supp. 160, 167 (S.D.N.Y.1987); and Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 265 (1981)); see also TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935 (D.C.Cir.2007) (quoting Yusuf, 126 F.3d at 23) (concluding that
The Court also must remain mindful of the principle that "judicial review of arbitral awards is extremely limited," and that this Court "do[es] not sit to hear claims of factual or legal error by an arbitrator" in the same manner that an appeals court would review the decision of a lower court. Teamsters Local Union No. 61 v. United Parcel Serv., Inc., 272 F.3d 600, 604 (D.C.Cir.2001) (quoting Kanuth v. Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1178 (D.C.Cir.1991)). In fact, careful scrutiny of an arbitrator's decision would frustrate the FAA's "emphatic federal policy in favor of arbitral dispute resolution," Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (internal citation omitted)—a policy that "applies with special force in the field of international commerce," id.—by "undermining the goals of arbitration, namely, settling disputes efficiently and avoiding lengthy and expensive litigation," LaPrade v. Kidder, Peabody & Co., 94 F.Supp.2d 2, 4-5 (D.D.C.2000) (Sullivan, J.), aff'd 246 F.3d 702 (D.C.Cir.2001). Instead, "a court must confirm an arbitration award where some colorable support for the award can be gleaned from the record." Id. at 4.
The overarching issue before the Court is whether the Award should be confirmed under 9 U.S.C. § 207 and Article IV of the New York Convention. By the Court's assessment, DynCorp's arguments in support of its cross-motion to deny confirmation of the Award can be distilled into two parts; first, that the Award should not be confirmed by the Court because the Qatari Court of Cassation set aside the Award, and International Trading is estopped from challenging the competency of that court "to set aside the Award within the meaning of Article V(1)(e) of the New York Convention," Resp'ts' Opp'n at 14, and second, the Court should deny recognition of the Award because the arbitrator acted with manifest disregard of the law, id. at 17. The Court addresses each of these contentions below.
DynCorp argues that the Court should refuse to recognize the Award under Article V(1)(e) of the New York Convention, which states that an arbitral award need not be confirmed if, inter alia,
To be sure, the Court agrees with DynCorp's acknowledgement that in a "typical enforcement action," the Qatari Court of Cassation's ruling would have no impact on this Court's analysis of whether confirmation of the Award should be denied in this instance. For the Court to deny confirmation of the Award under Article V(1)(e), it would have to find not only that the Award was set aside by a "competent authority," but also that the "competent authority" was located in "the country in which, or under the [arbitral] law of which, that award was made."
DynCorp's efforts to distinguish this case from a standard confirmation proceeding is unavailing. First, the terms of the Agreement belie any suggestion that the Award issued by the arbitrator was non-binding. The arbitration clause contained in both the English and Arabic versions of the Agreement provide that "any dispute arising in connection with this agreement" is to be resolved "under the rules ... of the [ICC]."
DynCorp's reliance on Karaha Bodas to support its estoppel argument is misplaced. The main issue confronting the Fifth Circuit in Karaha Bodas was whether a Swiss court or an Indonesian tribunal had jurisdiction to vacate an arbitral award under Article V(1)(e). Karaha Bodas, 364 F.3d at 289-90. The appellee in Karaha Bodas had taken the position in the arbitration proceeding that Swiss arbitral law applied to the dispute, id. at 293, but "[f]or the first time ... in the district court," the appellee argued "that Indonesian, not Swiss, procedural law had applied to the arbitration," id. at 289, because the contracts at issue "refer[red] to certain Indonesian Civil Procedure Rules," id. at 290. The Fifth Circuit rejected this argument, however, reasoning that the appellee's "previous arguments that Swiss arbitral law applied" to the dispute was "strong[] evidence [of] the parties' contractual intent," id. at 293 (emphasis added), and thus the appellee was estopped from asserting that Indonesian arbitral law governed the dispute, id. at 294.
As for DynCorp's invocation of comity principles, that argument has been effectively rendered moot by the Court's conclusions. It is true that "res judicata effect has ... traditionally been afforded foreign country judgments entitled to recognition consistently with principles of comity." Guinness PLC v. Ward, 955 F.2d 875, 893 n. 14 (4th Cir.1992). But affording comity to foreign judgments is not mandatory, see Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Tech., 369 F.3d 645, 654 (2d Cir.2004) ("United States courts may choose to give res judicata effect to foreign judgments on the basis of comity, but are not obliged to do so" (internal quotation marks omitted)); rather, "[c]omity will be granted to the decision or judgment of a foreign court if it is shown that the foreign court is a court of competent jurisdiction, and that the laws and public policy of the forum state ... will not be violated." Cunard S.S. Co. v. Salen Reefer Serv. AB, 773 F.2d 452, 457 (2d Cir.1985). Here, the Qatari Court of Cassation was not a "court of competent jurisdiction" because it lacked the authority under the New York Convention to set aside the Award. See supra at 10-11. Thus, the decision rendered by that tribunal is not entitled to deference under principles of comity.
In sum, DynCorp's efforts to distinguish this case from a "typical enforcement proceeding" falls flat. The terms of the Agreement demonstrate a clear and unambiguous intention by the parties to have all disputes arising from the Agreement resolved by binding arbitration and without resort to appeals before the Qatari courts. And, despite International Trading's voluntary participation in the proceedings before the Qatari courts, the Court is obligated to confirm the Award under Article V(1)(e) unless it can be shown that "[t]he award ... has been set aside ... by a competent authority of the country in which, or under the law of which, [an arbitral] award is made." New York Convention, art. V(1)(e). No such showing has been made by DynCorp, given that the Award was issued in France, and the Paris Court of Appeal rejected DynCorp's efforts to set aside the Award on November 4, 2010. Pet'r's Supp. Mem. at 1. The Court, therefore, is without authority to deny confirmation of the Award under Article V(1)(e).
Next, DynCorp argues that "[t]he Qatari Court of Cassation has already determined, albeit in language that may not mimic the phraseology employed by [United
The Court harbors a heavy dose of skepticism towards DynCorp's proposition that the Award can be refused confirmation under the New York Convention due to an arbitrator's alleged "manifest disregard of the law." Indeed, it would be a stretch to apply the "manifest disregard of the law" standard to awards falling within the province of the Convention, as the roots of that standard have no grounding in the treaty. Rather, the origin of this standard dates back to the Supreme Court's decision in Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), a decision that predates the enactment of the New York Convention in 1958.
9 U.S.C. § 10(a). In describing that power, the Supreme Court noted that "interpretations of the law by ... arbitrators in contrast to manifest disregard [of the law] are not subject, in the federal courts, to judicial review for error in interpretation." Wilko, 346 U.S. at 436-37, 74 S.Ct. 182. The Supreme Court was not clear as to which provision of Section 10(a), if any, it relied upon in reaching its conclusion; in fact, the Supreme Court recently acknowledged in Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576, 585, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), that the "vagueness of [this] phrasing" in Wilko has led to different viewpoints amongst the circuit courts as to how the "manifest disregard of the law" standard fits within the scheme of Section 10(a), with some circuit courts reading this standard to "refer[] to the § 10 grounds collectively, rather than adding to them," id. (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 656, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (Stevens, J., dissenting) and I/S Stavborg v. Nat'l Metal Converters, Inc., 500 F.2d 424, 432 (2d Cir.1974)), with other courts construing the standard to be "shorthand for § 10(a)(3) or § 10(a)(4), the paragraphs authorizing vacatur when the arbitrators were `guilty of misconduct' or `exceeded their powers,'" id. (citing Kyocera Corp. v. Prudential-Bache Trade Serv., Inc., 341 F.3d 987, 997 (9th Cir.2003)). The District of Columbia Circuit, along with several other Circuits, has interpreted this standard to be an additional ground for vacatur outside of those listed under Section 10. See Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 481 F.3d 813, 816 (D.C.Cir.2007) ("In addition to the grounds under the [FAA]... on which an arbitration award may be vacated, an award may be vacated only if it is `in manifest disregard of the law....'"); Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 353-54 (5th Cir.2009) ("[T]his circuit, like most other circuits, ultimately came to recognize manifest disregard of the law as a nonstatutory basis for vacatur."); McCarthy v. Citigroup Global Mkts., Inc., 463 F.3d 87, 91 (1st Cir.2006) (referring to the "manifest disregard of the law" standard as a "non-statutory standard of review"); Scott v. Prudential Sec., Inc., 141 F.3d 1007, 1017 (11th Cir.1998) (citing "manifest disregard of the law" as a "non-statutory ground[] ... to vacate an arbitration award"). But while the circuit courts may differ on the foundational underpinnings of the "manifest disregard of the law" standard,
Moreover, the Court is not persuaded by DynCorp's logic that because Article V(1)(c) of the New York Convention, "like Section 10(a)(4) [of the FAA],.. . addresses situations where the arbitrators have exceeded their powers," Article V(1)(c) therefore authorizes the Court to refuse recognition of the Award on the basis of an arbitrator's "manifest disregard of the law," since some courts have "held that arbitrators exceed their powers when they act in manifest disregard of the law." Resp'ts' Opp'n at 22. "In interpreting an international treaty," the Court must remain "mindful that it is in the nature of a contract between nations to which [g]eneral rules of construction apply." Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 533, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987) (internal citation omitted and alteration in original). The starting point for interpreting a treaty provision, therefore, is to look at "the text of the treaty and the context in which the written words are used." Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). Here, the plain language of Article V(1)(c) hardly suggests that confirmation of an arbitral award can be denied in every instance where an arbitrator's powers are exceeded. As this Court recently addressed in Republic of Argentina, 764 F.Supp.2d at 30, 2011 WL 182138 at *6:
Furthermore, at least one federal circuit court has concluded that Article V does not provide a tribunal with a basis for denying confirmation of an arbitral award where an arbitrator has manifestly disregarded the law. M & C Corp. v. Erwin Behr GmbH
Nor does the text of the Convention suggest that an arbitrator's "manifest disregard of the law" can serve as an independent and additional ground for denying confirmation of an arbitral award. Under Article V of the Convention, the Court's refusal to confirm an arbitral award is limited to "only" those situations where a "party furnishes ... proof that" one of the enumerated provisions applies. Nowhere in the seven enumerated provisions listed under Article V is an arbitrator's "manifest disregard of the law" a ground upon which the Court may deny confirmation of the Award; by negative implication, that basis, along with any other potential grounds for refusing confirmation of an arbitral award, are excluded. See, e.g., United States v. Vonn, 535 U.S. 55, 65, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (recognizing expressio unius est exclusio alterius—"that expressing one item of a commonly associated group or series excludes another left unmentioned"—as a guide for interpreting statutes). Such a narrow reading of the New York Convention comports with the context in which the Convention was enacted, as a broad construction of the Convention would do nothing more than erect additional hurdles to confirmation of arbitral awards, which in turn would contravene the "principal purpose" of the Convention, i.e., "to encourage the recognition and enforcement of commercial arbitration agreements in international contracts." Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974). Thus, the Court cannot envision how an arbitrator's "manifest disregard of the law" can serve as an independent ground to deny confirmation of the Award in the face of the Convention's plain language.
It should be no surprise, then, that DynCorp has failed to cite any case law where the "manifest disregard of the law" standard has been considered an express or implied basis for denying recognition of an arbitral award under the New York Convention. Instead, the cases that DynCorp cites (with the exception of one) all involve arbitral awards that had been rendered in the United States, thereby allowing the non-prevailing parties in those cases to seek vacatur of the award under Article V(1)(e) of the Convention. See Int'l Thunderbird Gaming Corp. v. United Mexican States, 473 F.Supp.2d 80, 82 (D.D.C.2007) (Kennedy, J.), aff'd 255 Fed.Appx. 531, 532-33 (D.C.Cir.2007) (denying petition to vacate arbitral award issued in Washington, D.C.); Esso Exploration and Prod. Chad, Inc. v. Taylors Int'l Servs., Ltd., 293 Fed.Appx. 34, 36 (2d Cir.2008) (affirming district court's rejection of petition to vacate arbitral award issued in New York);
The one case cited by DynCorp that did not involve a petition to set aside an arbitral award under the FAA and the Convention, In re Chromalloy Aeroservices, 939 F.Supp. 907 (D.D.C.1996) (Green, J.), is also distinguishable from this case but requires further explanation. There, a former member of this Court concluded that an arbitration prevailing party was not entitled to confirmation of the award under the Convention because the "award was made in Egypt, under the laws of Egypt, and ha[d] been nullified by [a] court designated by Egypt to review arbitral awards." Id. at 909. Judge Green, however, concluded that Article VII of the Convention allowed the prevailing party to "avail himself of an arbitral award in the manner and to the extent allowed by the law ... of the count[r]y where such award is sought to be relied upon." Id. (emphasis added). As a result, Judge Green concluded that the prevailing party also could seek confirmation of the arbitral award under Section 9 of the FAA rather than Article IV for the Convention, see id. (citing 9 U.S.C. §§ 1-14), "unless the award is vacated, modified, or corrected as prescribed in [S]ections 10 and 11 of [the FAA]," 9 U.S.C. § 9, or "if the award was made in `manifest disregard of the law,'" Chromalloy, 939 F.Supp. at 910.
But that line of reasoning has no application here. Judge Green's recognition of the applicability of the "manifest disregard of the law" standard in Chromalloy hinged on the prevailing party's invocation of Section 9 of the FAA through Article VII of the Convention. Here, however, DynCorp does not, and cannot, invoke Article VII because it is not attempting to "avail" itself of an arbitral award; rather, it is only seeking to "avail" itself of the defenses recognized under Section 10 of the FAA. See New York Convention, art. VII ("The provisions of the present Convention shall not ... deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law ... where such award is sought to be relied upon." (emphasis added)). Those defenses, as noted above, are not otherwise available to a party petitioning a court to deny confirmation of an arbitral award. See TermoRio, 487 F.3d at 935 (quoting Yusuf, 126 F.3d at 23). Thus, Chromalloy does not support DynCorp's position that an arbitrator's "manifest disregard of the law" is a basis upon which the Court may refuse recognition of the
As shown above, there is simply no support in either the text of the New York Convention or case law for DynCorp's position that an arbitrator's "manifest disregard of the law" is a valid basis upon which the Court can deny confirmation of an arbitral award. But notwithstanding the Court's analysis in this regard, DynCorp's efforts to prevent confirmation of the Award fail for yet another reason: the record is devoid of any evidence that the arbitrator in this case actually disregarded Qatari law. To establish that the arbitrator acted with "manifest disregard of the law," DynCorp has the burden of proving that "(1) the arbitrator[] knew of a governing legal principle[,] yet refused to apply it or ignored it altogether[,] and (2) the law ignored by the arbitrator[] was well[-]defined, explicit, and clearly applicable to the case." LaPrade v. Kidder, Peabody & Co., 94 F.Supp.2d 2, 4-5 (D.D.C.2000) (Sullivan, J.), aff'd 246 F.3d 702 (D.C.Cir.2001). Here, there is no evidence as DynCorp contends that the arbitrator failed to "search for the shared intention of the parties [by] pausing at the literal meaning of the [contractual terms]." Resp'ts' Opp'n at 20. In fact, not only does DynCorp concede that the arbitrator acknowledged his "obligat[ion] to interpret ... the 1998 Agreement in light of the shared intention of the parties," id., but the arbitrator's decision itself reflects his efforts to glean the parties' shared intent from the Agreement. According to the Award, the arbitrator found that Section 9.1 required the Agreement to remain in effect "for a period of sixty months from the date of signature ..., unless and until terminated" by one of the parties thereafter, Pet'r's Mem., Ex. A (Award) at 23. Although the arbitrator acknowledged that Section 9.1 contained an "apparent inconsistency," id.—that the Agreement shall continue "unless terminated by ... giving... 90 (Ninety) days prior notice expiring on or at any time after the first anniversary of the date" the Agreement was signed, Resp'ts' Opp'n, Ex. A (the 1998 Agreement) at 12—the arbitrator concluded that the two clauses "can be applied in [a] way... without resulting in any direct contradiction" because any notice given "after 60 months is also necessarily after the first 12 months of the contract," Pet'r's Mem., Ex. A (Award) at 24. The arbitrator also noted that "[i]f the intention of ... the parties was" for the Agreement to be voidable after one year rather than sixty months, then "the Agreement would have been drafted and signed initially for a period of one year," with an option of an annual renewal, Pet'r's Mem., Ex. A (Award) at 24 (emphasis added). Thus, the arbitrator's analysis hardly suggests that he "paus[ed] at the literal meaning of the" contractual terms, as alleged by DynCorp, Resp'ts' Opp'n at 20; rather, the Award reflects an attempt by the arbitrator to reconcile the literal meaning of two clauses that appeared to be directly contradictory
DynCorp also asserts that the Qatari Court of Cassation found the sole arbitrator to have acted with manifest disregard of Qatari law, Resp'ts' Opp'n at 20, but the record suggests otherwise. Nowhere in the Qatari Court of Cassation's decision did the tribunal conclude that the arbitrator "refused to apply" or "ignored" Qatari law, LaPrade, 94 F.Supp.2d at 4-5; to the contrary, the Qatari Court of Cassation found that the arbitrator "implement[ed]" Qatari law (albeit erroneously in that court's view) in reaching his decision. See Resp'ts' Mem., Ex. E (Decision of Qatari Court of Cassation) at 4 (concluding that the arbitrator's construction of the 1998 agreement was "error[oneous] in the implementation of the law" (emphasis added)). DynCorp's position collapses even further when taking into account the decision of the Qatari Court of Appeal, which held that the arbitrator's decision "was resolved on correct, suitable, and accepted... law." Id., Ex. D (Decision of Qatari Court of Appeal) at 12-13. If it were truly the case that the Qatari Court of Cassation found that the arbitrator acted with "manifest disregard of the law," then the necessary implication from that conclusion is that the Qatari Court of Appeal—which this Court can safely assume is composed of jurists well-learned in Qatari jurisprudence—also "refused to apply" or "ignored" Qatari law. The Court finds such a circumstance untenable. What the Qatari Court of Appeal's affirmation of the arbitrator's decision does signify, however, is that the arbitrator's conclusions, at a minimum, were a "colorable" interpretation of the Agreement, and because the arbitrator "was arguably construing or applying the contract, [the C]ourt must defer to the arbitrator's judgment." Madison Hotel v. Hotel & Rest. Emps., Local 25, 144 F.3d 855, 859 (D.C.Cir.1998) (citation and internal quotation marks omitted).
Accordingly, the Court rejects DynCorp's arguments that confirmation of the Award should be denied as a result of the arbitrator's purported "manifest disregard of the law." The New York Convention does not contain any provision that authorizes the Court to deny confirmation of an arbitral award due to an arbitrator's manifest disregard of the law. In any event, even if the Court were empowered to refuse recognition of the Award on this basis, DynCorp has failed to establish any ignorance of Qatari law, let alone a "manifest disregard of the law," by the arbitrator in rendering his decision. DynCorp's arguments are thus entirely without merit.
For all the reasons discussed above, DynCorp's efforts to prevent confirmation of the Award must be rejected. Despite the Qatari Court of Cassation's conclusion that the arbitrator's construction of the 1998 Agreement contravened Qatari law, this Court is without authority to refuse recognition of the Award under Article V(1)(e) based on that ruling. Moreover, notwithstanding the distinct unlikelihood that the Court can deny confirmation of the Award where an arbitrator acts with "manifest disregard of the law," the record does not reveal any evidence suggesting that the arbitrator either "refused to apply" or "ignored" a clear principle of law. LaPrade, 94 F.Supp.2d at 4-5. Having failed to meet "the showing required to avoid summary confirmation," Ottley, 819 F.2d at 376, the Court concludes that the Award must be confirmed, and that International Trading is entitled to damages in the amount of $1,107,764.95, along with $40,000 for costs, and interest of 5% per
Although the exact wording of the Arabic version of Section 13.1 is unclear from the parties' submissions, the parties do agree that the Arabic version does not contain the word "finally." Pet'r's Reply at 12; see Resp'ts' Opp'n at 6 ("[W]hile the English version [of Section 13.1] states that any dispute will be `finally settled' under the rules of the . . . []ICC[], the controlling Arabic version of Section 13.1 contains no such statement or equivalent language."). As explained below, DynCorp argues that the omission of this language is legally significant. See infra at 10.
The Court agrees with International Trading that if the Arabic version of the Agreement contains the word "settled," then that alone is sufficient to show that the parties intended to "resolve" the dispute "conclusively." Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/settled (last visited Jan. 21.2011). The Court, however, is not convinced that DynCorp has actually conceded the presence of the word "settled" in the Arabic translation of the arbitration clause. DynCorp's position is that "while the English version of [the] arbitration clause states that any dispute will be `finally settled' under the [ICC] rules ... the controlling Arabic version ... contains no such statement or equivalent language." Resp'ts' Opp'n at 6 (emphasis added). In other words, DynCorp appears to be arguing that the arbitration clause does not contain both the words "finally" and "settled." And, because neither party has provided an English translation of the Arabic version, the Court is unable to determine whether there is any merit to International Trading's argument. Regardless, as the Court discusses below, the parties' incorporation of the ICC rules into the Agreement is sufficient to support a finding that the Award was intended by the parties to be final and binding.
Republic of Argentina v. BG Group, Civil Action No. 08-485(RBW), n. 4, 764 F.Supp.2d 21, 27, 2011 WL 182138 at *14 n. 4 (D.D.C. Jan. 21, 2011) (internal citations omitted).
