Guy S. Lipe June 15, 2010

1. Recent Developments and Current Issues Relating to Enforcement in the United States of Foreign Arbitral Awards Guy S. Lipe June 15, 2010

2. Personal Jurisdiction Base Metal Trading, Ltd. v. OJSC Novokuznetsky Aluminum Factory, 283 F.3d 208 (4th Cir. 2002) • Court dismissed recognition and enforcement action for lack of personal jurisdiction where award debtor’s only contact with forum was shipment of aluminum sitting in Baltimore Harbor • “Presence of property alone will not support jurisdiction.” • Case did not arise out of shipment of aluminum, therefore no specific personal jurisdiction

3. Personal Jurisdiction Glencore Grain Rotterdam B.V. v. Shivnath Rai Hanarain Co., 284 F.3d 1114 (9th Cir. 2002) • Court dismissed recognition action for lack of personal jurisdiction • Personal jurisdiction exists where defendant owns assets located in the forum • Plaintiff identified no specific property owned by defendant in forum, therefore no jurisdiction

4. Personal Jurisdiction Telcordia Tech. Inc. v. Telkom SA Ltd., 458 F.3d 172 (3d Cir. 2006) • Court found personal jurisdiction over Defendant in recognition action • Due Process protections are not diminished by New York Convention • Desire to have portability of arbitral awards influences the analysis of whether a defendant may reasonably anticipate being haled into court where recognition is sought • Defendant had the required minimum contacts with the forum by virtue of contacts with New Jersey in the underlying transaction

5. Personal Jurisdiction Frontera Res. Azer. Corp. v. State Oil Co. of the Azer. Republic (SOCAR), 582 F.3d 393 (2d Cir. 2009) • Either personal or quasi in rem jurisdiction generally required; will exist if defendant owns assets located in the forum • Plaintiff identified no specific property owned by defendant located in the forum, so no personal jurisdiction under traditional due process analysis • Minimum-contacts analysis not required if defendant is a foreign state or an instrumentality of a foreign state that is an agent of the foreign state; case remanded for FSIA inquiry • Lower courts apply requirement of personal or quasi in rem jurisdiction, e.g., Adrian Shipholding Inc. v. Lawndale Grp., 08 Civ. 11124, U.S. Dist. LEXIS 30240 (S.D.N.Y. 2010)

6. Forum Non Conveniens In re Arbitration between Monegasque de Reassurances (Monde Re) v. Nak Naftogaz, 311 F.3d 488 (2d Cir. 2002) • Second Circuit dismissed recognition and enforcement action on forum non conveniens grounds. • Adequate alternative forum in Ukraine exists because: • Adequate alternative forum means a forum that will fairly adjudicate the claim • No evidence of corruption in Ukrainian courts • Ukrainian courts typically hear cases for judgment on arbitration awards

7. Forum Non Conveniens TMR Energy Ltd. V. State Property Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005) • D.C. Circuit refused to dismiss recognition and enforcement action on forum non conveniens grounds. • No adequate alternative forum because: • Adequate alternative forum means a forum that can provide the same remedy • Remedy here is attachment of US assets to a judgment (either presently in the forum or potentially located in forum later) • Foreign court cannot attach US assets

8. Forum Non Conveniens Figueiredo Ferraz Consultoria e Engenharia de Proheto Ltda. V. Republic of Peru, 655 F. Supp. 2d 361 (S.D.N.Y. 2009) • District court refused to dismiss recognition and enforcement action on forum non conveniens grounds. • Notable because lower court in Second Circuit applies TMR approach rather than Monde Re approach • No adequate alternative forum because no other forum could reach Peru’s assets in the U.S.