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Daebo International Shipping Co., Ltd v. Americas Bulk Transport (Bvi) Ltd

May 17, 2013


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


This case presents what typically is a straightforward proceeding-a petition to confirm a foreign arbitral award-in an unusual posture. The plaintiff, Daebo International Shipping Co., Ltd. ("Daebo International"), seeks to confirm an arbitration award that was rendered in London in favor of a now-defunct entity, Daebo Shipping Co. Ltd. ("Daebo Shipping"). Defendant Americas Bulk Transport (BVI) Ltd. ("ABT"), against whom the arbitral award was rendered, moves for summary judgment dismissing the Second Amended Complaint. Daebo International cross-moves for confirmation and enforcement of the award. What Daebo International really seeks, however, is a modification of the award to name it as the beneficiary of the award in favor of Daebo Shipping-relief that Daebo International has already sought from the arbitral panel and been denied. Although Daebo International may well be entitled to the relief it seeks, it has chosen the wrong forum. This Court, sitting outside the seat of arbitration, lacks the power to modify the award as requested; Daebo International's petition is properly brought in an English court. Accordingly, ABT's motion is granted, and Daebo International's motion is denied.


Pursuant to a charter party dated January 15, 2008, Daebo Shipping, a Korean company, chartered the M/V Nicole to ABT, a company organized under the laws of Liberia. Gutowski Decl. Ex. A. A dispute arose between the parties, wherein Daebo Shipping asserted a claim for $306,234 against ABT, and ABT asserted a counter-claim for $729,819 against Daebo Shipping. Award at 2. As agreed in the charter, the parties submitted their dispute to arbitration in London. Id. On March 13, 2012, the London arbitral panel issued its award (the "Award"), granting Daebo Shipping's claim for $306,234, plus interest and costs, and denying ABT's counter-claim. Id. at 3.

On January 5, 2010-after the commencement of arbitration but before the panel's Award was issued-Daebo Shipping merged with another Korean company, Daebo International, and therefore ceased to exist as a corporate entity under Korean law. Pl. 56.1 ¶ 8; Def. 56.1 ¶ 8; First Kang Decl. ¶¶ 10--16; Second Kwon Decl. ¶ 5; Dkt. 21-2 (Korean incorporation records). However, Daebo International never notified the arbitrators of the merger during the pendency of the arbitration. Pl. 56.1 ¶ 9; Def. 56.1 ¶ 9; Modification Ruling ¶ 4. On March 28, 2012, two weeks after the Award was issued, counsel for Daebo International notified the arbitral panel of the change in corporate status and asked the panel to either "correct" the Award so as to make it in favor of Daebo International, rather than Daebo Shipping, or to issue a supplementary award stating that the existing award is enforceable by Daebo International. Modification Ruling ¶¶ 1--2. In a ruling dated May 2, 2012 (the "Modification Ruling"), the London panel denied Daebo International's requests, finding that it lacked the power to grant the requested relief. Id. ¶¶ 3--5.

On June 18, 2012, Daebo International commenced this case by filing a petition for recognition, confirmation, and enforcement of the Award. Dkt. 1. That petition named ABT as the respondent. The petition made no mention of the Modification Ruling.

On August 10, 2012, before the original petition was served on ABT, an Amended Complaint was filed, this time by Daebo Shipping (rather than Daebo International). Dkt. 4. In addition to seeking enforcement of the Award against ABT, the Amended Complaint named six other entities as co-defendants (the "Alter Ego Defendants"), and sought a declaratory judgment that these defendants were the alter egos of ABT and therefore were also liable to satisfy the Award. Again, the Amended Complaint made no mention of the Modification Ruling.

On September 28, 2012, ABT and the Alter Ego Defendants moved to dismiss the Amended Complaint. Dkt. 13. On December 13, 2012, this Court issued an Opinion & Order, finding that Daebo Shipping, as a defunct corporate entity, was an improper plaintiff; the Court granted leave to amend the complaint to name Daebo International as the proper plaintiff. Dkt. 26 ("Op."). The Court also dismissed the claims against the Alter Ego Defendants. Op. 5 (citing Orion Shipping & Trading Co. v. E. States Petroleum Corp. of Pan., SA, 312 F.2d 299, 301 (2d Cir. 1963)).*fn2

On December 20, 2012, plaintiff filed a Second Amended Complaint, this time identifying itself as "Daebo International Shipping Co., Ltd. f/k/a Daebo Shipping Co., Ltd." Dkt. 27 ("SAC"). For ease of reference, the Court will continue to refer to the plaintiff herein as "Daebo International." On January 24, 2013, ABT filed a motion for summary judgment dismissing the SAC. Dkt. 29--32. On February 28, 2013, Daebo International filed an opposition to that motion and a cross-motion for summary judgment and confirmation of the award. Dkt. 35--39. On April 12, 2013, ABT filed an opposition to Daebo International's motion and reply in further support of its motion. Dkt. 42--45. On April 26, 2013, Daebo International filed a reply. Dkt. 47--50.

II.Applicable Legal Standard

Chapter 2 of the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 201--08, empowers federal courts to enforce arbitral awards, such as this one, governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (the "New York Convention"). See Telenor Mobile Commc'ns AS v. Storm LLC, 584 F.3d 396, 404 (2d Cir. 2009). When a party seeks confirmation of an arbitral award under the New York Convention, "[t]he court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention." 9 U.S.C. § 207; see Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., 403 F.3d 85, 90 (2d Cir. 2005). "Article V of the Convention specifies seven exclusive grounds upon which courts may refuse to recognize an award." Encyclopaedia Universalis, 403 F.3d at 90. "The party opposing enforcement of an arbitral award has the burden to prove that one of the seven defenses under the New York Convention applies." Telenor, 584 F.3d at 405 (citation omitted). "The burden is a heavy one, as the showing required to avoid summary confirmance is high." Id. (citation omitted).

"Given the strong public policy in favor of international arbitration, review of arbitral awards under the New York Convention is 'very limited . . . in order to avoid undermining the twin goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive litigation.'" Encyclopaedia Universalis, 403 F.3d at 90 (quoting Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys "R" Us, Inc., 126 F.3d 15, 23 (2d Cir. 1997) (additional internal citations omitted)); accord Willemijn Houdstermaatschappij, BV v. Standard Microsystems Corp., 103 F.3d 9, 12 (2d Cir. 1997) ("The court's function in confirming or vacating an arbitration award is severely limited." (citation and alteration omitted)).

However, "[a] petition to confirm an arbitral award is 'treated as akin to a motion for summary judgment.'" STX Pan Ocean Shipping Co. Ltd. v. Progress Bulk Carriers Ltd., No. 12 Civ. 5388 (RJS), 2013 WL 1385017, at *2 (S.D.N.Y. Mar. 14, 2013) (quoting D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 109 (2d Cir. 2006)). Although the party opposing enforcement bears the burden of proving that one of the seven defenses is applicable, the petitioner retains the burden of establishing certain threshold requirements. See, e.g., Sonera Holding B.V. v. Cukurova Holding A.S., No. 11 Civ. 8909 (DLC), 2012 WL 3925853, at *4 (S.D.N.Y. Sept. 10, 2012) (petitioner bears the burden of establishing personal jurisdiction); Compagnie Noga D'Importation et D'Exportation SA v. Russian Fed'n, No. 00 Civ. 632 (WHP), 2008 WL 3833257, at *4 (S.D.N.Y. Aug. 15, 2008) (even in a summary confirmation ...

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