Sural (Barbados) Ltd. and the Government of the Republic of Trinidad and Tobago (\u201cGORTT\u201d) entered into an agreement to create a smelter and related plants.\u00a0After project delays and ultimate termination of the agreement, GORTT entered into an expanded agreement with a third party, Votorantim Group (VG).<\/p>\n
Sural filed an arbitration proceeding against GORTT before the ICC to address contract claims arising from its now defunct agreement.\u00a0Trinidad and Tobago law, treated as English law, governed the Agreement and the seat of the arbitration was Miami, Florida.\u00a0An Award was ultimately entered in favor of GORTT which it then confirmed before the High Court of Justice in England.\u00a0Within days of confirmation, Sural filed a petition in the United States District Court for the Southern District of Florida to confirm the Award, in part, and set it aside, in part.\u00a0In response, GORTT filed a cross-motion to confirm the Award.<\/p>\n
Initially, the court rejected GORTT\u2019s argument that it should defer to the prior ruling of the English court.\u00a0Noting that England was a secondary jurisdiction under the New York Convention and the United States was the primary jurisdiction, the court determined that it had power to vacate the award (unlike a secondary jurisdiction which can only \u201crefuse or stay enforcement of an award\u201d).\u00a0Judicial comity, therefore, did not preclude the court from ruling on the issues presented.<\/p>\n
As non-domestic parties, Sural and GORTT agreed that the New York Convention applied to their dispute.\u00a0However, Sural advocated for application of the Florida International Commercial Arbitration Act (FICAA) over the Federal Arbitration Act.\u00a0After considering the issue, the court determined that the FICAA operated essentially as a \u201cgap filler\u201d when not in conflict with the FAA and proceeded to address both Acts in the remainder of the opinion.<\/p>\n
Sural\u2019s substantive challenge to the Award was premised on denial of its discovery requests pursuant to Article V(1)(b) of the New York Convention ( \u201cthe party against whom the award is invoked \u2026 was otherwise unable to present his case\u201d).\u00a0The panel had rejected Sural\u2019s request for a third party subpoena to a principal of VG and its motion to compel communications between GORTT and VG, finding the information cumulative, not relevant and untimely.<\/p>\n
Noting that the panel\u2019s denials of discovery occurred months before the arbitration hearing, the court essentially held that Sural\u2019s participation in the proceedings without objection constituted waiver.\u00a0The court relied on the waiver provisions contained in the ICC rules, the FICAA, and the stringent standards set forth in the FAA\u2019s application of the New York Convention which provide \u201cbusinesses with a widely used system through which to obtain domestic enforcement of international commercial arbitration awards resolving contract and other transactional disputes, subject only to minimal standards of domestic judicial review<\/em> for basic fairness and consistency with national public policy.\u201d\u00a0In light of that heavy burden and Sural\u2019s waiver, the court declined to further address the substance of the challenged rulings and granted GORTT\u2019s cross-motion to confirm the Award dubbing Sural\u2019s belated challenge nothing more than \u201cbuyer\u2019s remorse\u201d with the outcome rather than a denial of due process.<\/p>\n The case is noteworthy because it addresses the distinction between primary and secondary jurisdiction and the interplay of the FICAA and FAA. The opinion also provides a reminder of potential consequences in failing to timely object during proceedings to preserve subsequent arguments \u2013 even in the face of the heavy burden imposed by U.S. and Florida courts which strongly favor arbitration. The case is Sural (Barbados) Ltd. v. The Government of the Republic of Trinidad and Tobago, <\/em>Case No. 1:15-cv-22825-KMM\u00a0<\/em>(S.D. Fla. Aug. 12, 2016).\u00a0The Opinion is here<\/a>.<\/p>\n Ava Borrasso<\/strong><\/em><\/a> is the Principal of <\/em>Ava J Borrasso, P.A<\/strong><\/em><\/a>., a Miami-based law firm that concentrates on business and international arbitration and litigation. She also serves as an Arbitrator and is a member of commercial panel the American Arbitration Association.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" Sural (Barbados) Ltd. and the Government of the Republic of Trinidad and Tobago (\u201cGORTT\u201d) entered into an agreement\u2026 <\/p>\n","protected":false},"author":1,"featured_media":117,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-116","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-posts"],"_links":{"self":[{"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/posts\/116","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/comments?post=116"}],"version-history":[{"count":5,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/posts\/116\/revisions"}],"predecessor-version":[{"id":290,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/posts\/116\/revisions\/290"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/media\/117"}],"wp:attachment":[{"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/media?parent=116"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/categories?post=116"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/tags?post=116"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}