United States District Court, S.D. New York
ATTORNEYS FOR PETITIONER PILLSBURY WINTHROP SHAW PITTMAN LLP
BY: KENNETH W. TABER, ESQ. NICHOLAS M. BUELL, ESQ.
ATTORNEYS FOR RESPONDENT DAVIDOFF HUTCHER & CITRON LLP
BY: ERIC J. PRZYBYLKO, ESQ.
W. SWEET, U.S.D.J.
BSH Hausgerate GMBH ("BSH" or the
"Petitioner") has petitioned, pursuant to the
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, June 6, 1958, 21 U.S.T. 2517, codified
at 9 U.S.C. § 201 et seq. (the "New
York Convention" or "Convention"), for an
order confirming a foreign arbitration award of a money
judgment for BSH and against Respondent Jak Kamhi
("Kamhi" or the "Respondent") in the
amount of: (1) $544, 230; (2) €1, 900, 487.13; and (3)
interest on those amounts under Article 4(a) of the Turkish
Law No. 3095, at the applicable rate, compounded annually,
from February 7, 2017, until full and final settlement of the
award (the "Final Award"). See Am. Pet. 5, Dkt. No.
upon the conclusions set forth below, the petition is
granted, and the Final Award is confirmed.
on the relationship of the parties, the parties'
arbitration agreements, the foreign arbitration process
before a panel of three arbitrators (the "Arbitral
Tribunal"), and the Final Award were set forth in the
Court's October 18, 2017, also contained an agreement to
arbitrate disputes before the ICC and under the ICC Rules.
See id., Ex. B ¶ 5.
October 7, 2013, Kamhi, one of five claimants (the
"Claimants"), submitted a Request for Arbitration
to the ICC. See id., Exs. C, E ¶ 1 (defining
the five claimants as "Claimants"). In the
arbitration, Claimants sought monetary and non-monetary
relief based on the theory that the termination of a
distributorship agreement in 2008 (the "DA"), to
which BSH was not a party, triggered an automatic rescission
that terminated the SPA-BSH; accordingly, Claimants requested
either that BSH return its SPA-BSH shares or pay damages for
allegedly causing the breach. See id., Exs. C, E
¶¶ 143-47. On January 15, 2014, BSH filed its
Answer to the Request for Arbitration, consenting to the
ICC's jurisdiction. See id., Exs. D ¶¶
11-12, E ¶ 10. The parties and Arbitral Tribunal agreed
to the arbitration's Terms of Reference on May 19, 2014.
See Declaration of Nicholas M. Buell dated September
22, 2017 ("Buell Sept. 22 Decl.") Ex. A, Dkt. No.
the arbitration proceedings, BSH and the other respondents in
the arbitration moved to have the arbitration bifurcated as
to whether (i) the DA's termination automatically
terminated the SPA-BSH (the "Automatic Termination
Claim") and (ii) BSH caused the breach of the DA (the
"Breach Claim"); on August 11, 2015, after
briefings, an initial denial, and a renewed motion for
bifurcation, the Arbitral Tribunal granted the request.
Declaration of Eric J. Przybylko dated September 14, 2017
("Przybylko Decl."), Exs. 2-3, 7, Dkt. No. 39. The
Arbitral Tribunal noted that, after resolving the question of
automatic termination, subsequent issues, "if any, will
be determined by the [Arbitral] Tribunal in consultation with
the Parties." IcL, Ex. 7 ¶ 47.
September 5 and 6, 2016, the Arbitral Tribunal conducted
hearings in Switzerland. Buell July 28 Decl., Ex. E ¶
February 6, 2017, the Arbitral Tribunal issued its Final
Award, awarding BSH a money judgment against the Claimants in
the amount of: (1) $544, 230; (2) €1, 900, 487.13; and
(3) interest on those amounts under Article 4(a) of the
Turkish Law No. 3095, at the applicable rate, compounded
annually, from February 7, 2017 until full and final
settlement of the award. See Buell July 28 Decl.,
Ex. E ¶¶ 67-142, 574-79 & sec. XVIII. Prior to
rendering its decision, the Arbitral Tribunal accepted
briefing on whether a second phase would be unnecessary if
the claim regarding automatic termination was rejected and,
after determining that the SPA-DB had not been terminated,
found in its Final Award that "no issue remains to be
determined in any second phase of the proceedings" with
regard to the Breach Claim. Id., Ex. E ¶¶
488, 492; see id. ¶¶ 457-59, 475-88, 510,
28, 2017, BSH filed the instant petition to confirm, which
was amended on August 3, 2017. Dkt. Nos. 1, 20.
August 2, 2017, Petitioner moved to confirm an order of
attachment issued against Respondent's real property
located at 15 West 53rd Street, Apt. 32B, New York, New York
10019, which was granted in the October 18 Opinion. See
id., 2017 WL 4712226, at *7.
the October 18 Opinion, the parties requested oral argument
on the instant petition, which was heard and marked fully
submitted on December 6, 2017.