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KANSALLIS-OSAKE-PANKKI v. KOURI

August 18, 1994

KANSALLIS-OSAKE-PANKKI, Plaintiff,
v.
PENTTI J. K. KOURI, Defendant.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D. J.

 Plaintiff Kansallis-Osake-Pankki ("KOP") has moved to stay this action against Defendant Pentti J. K. Kouri ("Kouri") and to compel arbitration in Finland of certain issues arising out of a July 25, 1991 settlement agreement between the two parties (the "Settlement Agreement"). For the reasons set forth below, KOP's motion to stay is granted in part and denied in part.

 The Parties, Prior Proceedings, and Facts

 The relationship between the parties and the history of this dispute are recounted in the prior opinions of this Court issued on July 22, 1993, see Kansallis-Osake-Pankki v. Kouri, 150 F.R.D. 69 (S.D.N.Y. 1993) ("KOP I ") (denying KOP's motions for declaratory and summary judgment), and on January 25, 1994, see Kansallis-Osake-Pankki v. Kouri, 93 Civ. 0776, 1994 U.S. Dist. LEXIS 601 (S.D.N.Y. Jan. 25, 1994) ("KOP II ") (denying KOP's motion to compel arbitration).

 Based upon a finding that Kouri had raised sufficient factual issues as to whether his execution of the Additional Guarantee was without consideration due to KOP's alleged failure to perform upon the Settlement Agreement, this Court denied KOP's original motion for summary judgment. KOP I, 150 F.R.D. at 73.

 In KOP II, this Court denied KOP's motion to stay pending the arbitration of the issue of performance under the Settlement Agreement and granted Kouri's cross-motion to compel KOP's filing of a complaint pursuant to Rule 7(a), Fed. R. Civ. P. At that time this Court noted that the denial of the stay did not resolve the "principal issue raise by the parties" which was whether KOP had waived its right to arbitrate in light of Cotton v. Slone, 4 F.3d 176, 179-80 (2d Cir. 1993) ("Cotton"). See KOP II, 1994 U.S. Dist. LEXIS 601 at *3 The KOP II determined that should the action proceed, and Kouri presented counterclaims which are arbitrable pursuant to the Settlement Agreement, then the stay question would require revisitation.

 Subsequent to KOP II, KOP duly filed a complaint to which Kouri answered. The answer included several counterclaims pursuant to the Settlement Agreement as well as the Additional Guarantee Agreement.

 As a result of certain of Kouri's counterclaims, KOP in the present motion again seeks to stay these proceedings pending arbitration in Helsinki, Finland, pursuant to section 3 of the Federal Arbitration Act, 9 U.S.C. § 3. The question of whether KOP has waived its right to arbitration is now ripe for judicial review.

 This motion was filed on May 4, 1994 and oral argument was heard on June 8, 1994, whereupon the motion was considered fully submitted.

 Discussion

 The Second Circuit has emphasized that there is a strong presumption in favor of arbitration, see Rush v. OppenHeimer & Co., 779 F.2d 885, 887 (2d Cir. 1985), and that waiver of arbitration should not be "lightly inferred." Carcich v. Rederi Aì Nordie, 389 F.2d 692, 696 (2d Cir. 1968).

 In Cotton v. Slone, 4 F.3d 176 (2d Cir. 1993), the Court of Appeals resolved that a finding of prejudice to the opposing party was a "prerequisite" to the determination that a party has waived its right to arbitrate. Id. at 180. The Court held that "sufficient prejudice to infer waiver" would be found when the proponent of arbitration has engaged in "discovery procedures not available in arbitration . . . makes motions going to the merits of an adversary's claims . . . or ...


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