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Bamberger Rosenheim, Ltd. v. OA Development, Inc.

United States Court of Appeals, Eleventh Circuit

July 17, 2017

BAMBERGER ROSENHEIM, LTD., (ISRAEL), Plaintiff-Appellant,
v.
OA DEVELOPMENT, INC., (UNITED STATES), Defendant-Appellee.

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:15-cv-04460-ELR

          Before MARTIN, JILL PRYOR, and MELLOY, [*] Circuit Judges.

          MELLOY, Circuit Judge

         In this international arbitration dispute, we consider whether courts must defer to an arbitrator's interpretation of a venue provision in a concededly valid agreement to arbitrate. We conclude that questions of arbitral venue, even those arising in international arbitration, are presumptively for the arbitrator to decide. Accordingly, because the arbitrator in the present case arguably interpreted the arbitral-venue provision at issue, we defer to that interpretation. See Oxford Health Plans LLC v. Sutter, 133 S.Ct. 2064, 2068 (2013). We therefore affirm the district court's confirmation of the arbitral award.

         I.

         Appellant Bamberger Rosenheim, Ltd. ("Profimex"), [1] an Israeli company, raises capital for real estate investments. Appellee OA Development, Inc. ("OAD"), an American company incorporated in the state of Georgia, develops real estate. In 2008, Profimex and OAD entered into a Solicitation Agreement. The Solicitation Agreement provided for the arbitration of disputes as follows:

Any disputes with respect to this Agreement or the performance of the parties hereunder shall be submitted to binding arbitration proceedings conducted in accordance with the rules of the International Chamber of Commerce. Any such proceedings shall take place in Tel Aviv, Israel, in the event the dispute is submitted by OAD, and in Atlanta, Georgia, in the event the dispute is submitted by Profimex.

         After relations between the parties deteriorated, Profimex commenced arbitration in Atlanta against OAD for breach of contract. In the same Atlanta arbitration, OAD submitted a counterclaim alleging that Profimex had defamed OAD in statements to Israeli investors. Profimex objected to the counterclaim's arbitration in Atlanta, arguing "that a 'dispute submitted by OAD' [must] be arbitrated in Tel Aviv, Israel." The arbitrator, however, determined that venue for the defamation counterclaim was proper in Atlanta, in part, because the "dispute" was submitted by Profimex. The arbitrator ultimately found Profimex liable on OAD's defamation counterclaim.

         Profimex filed a petition to vacate the arbitrator's defamation award in federal district court, and OAD filed a petition to confirm the award. Profimex raised several grounds for vacatur and defenses against confirmation. The district court, nevertheless, confirmed the award.

         II.

         "We review confirmations of arbitration awards and denials of motions to vacate arbitration awards under the same standard, reviewing the district court's findings of fact for clear error and its legal conclusions de novo." Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313, 1321 (11th Cir. 2010). "Because arbitration is an alternative to litigation, judicial review of arbitration decisions is 'among the narrowest known to the law.'" AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007) (quoting Del Casal v. E. Airlines, Inc., 634 F.2d 295, 298 (5th Cir. Unit B Jan. 1981)). This "limited judicial review . . . 'maintain[s] arbitration's essential virtue of resolving disputes straightaway.'" Oxford Health Plans, 133 S.Ct. at 2068 (alteration in original) (quoting Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 588 (2008)). "If parties could take 'full-bore legal and evidentiary appeals, ' arbitration would become 'merely a prelude to a more cumbersome and time-consuming judicial review process.'" Id. (quoting Hall St. Assocs., 552 U.S. at 588).

         On appeal, Profimex argues that the district court erred in confirming the arbitral award under the New York Convention. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 (entered into force with respect to the United States Dec. 29, 1970) ("New York Convention"). The New York Convention is codified under Chapter 2 of the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 201-08, and applies to "non-domestic" arbitral agreements and awards. Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 1441 (11th Cir. 1998). Arbitral awards are non-domestic "when one of the parties to the arbitration is domiciled or has its principal place of business outside of the United States." Id. Such awards "must be confirmed unless appellants can successfully assert one of the seven defenses against enforcement of the award enumerated in Article V of the New York Convention." Id. (emphasis added). Here, Profimex asserts that "the arbitral procedure was not in accordance with the agreement of the parties." New York Convention, Art. V(1)(d).

         Profimex also contends the district court erred in denying its petition to vacate the award under Chapter 1 of the FAA, 9 U.S.C. §§ 1-16, which governs domestic arbitration. Indus. Risk Insurers, 141 F.3d at 1440. Under 9 U.S.C. § 10, a court "may make an order vacating the award" provided the petitioner establishes one of several grounds for vacatur. In the present case, Profimex argues that "the arbitrator[ ] exceeded [his] powers." 9 U.S.C. § 10(a)(4).[2]

         We see no reason to analyze Profimex's arguments under the New York Convention or § 10(a)(4) separately. In both arguments, Profimex asserts the arbitrator improperly applied the arbitral-venue provision in the parties' agreement to arbitrate. According to Profimex, the venue provision required arbitration of the defamation counterclaim in Tel Aviv, Israel. By arbitrating the counterclaim in Atlanta, Profimex argues, "the arbitral procedure was not in accordance with the agreement of the ...


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